The construction and engineering industry is arguably the world’s largest. It is fast-paced and often governed by strict deadlines, where completing a successful project requires cooperation and teamwork among owners, architects, engineers, contractors, subcontractors, and many others. The lawyers in our Construction and Engineering practice have a complete understanding of the industry, from the early stages of finance, development, and design through implementation, construction, and project close-out.
Our lawyers draw upon their legal and technical experience to work with clients to minimize disputes and accomplish common project goals on a local, national, and international scale. Additionally, we partner with our colleagues in other practice areas such as mergers and acquisitions, labor and employment, intellectual property, and immigration to offer our clients a full range of legal services in support of the construction industry.
Many of the group’s lawyers have worked in the construction, engineering, architecture, and building materials industries or in the government agencies that interact with these industries. This practical, real-world experience, combined with the breadth of the practice, allows our lawyers to anticipate, address, and help prevent the myriad of problems that can arise during any phase of a construction project in both the private and public sectors.
Additionally, the substantive knowledge of applicable laws, rules, and regulations possessed by our construction and engineering lawyers, combined with our experience in the industry, enables the firm to deliver high-quality legal services in a personal, results-oriented, and cost-efficient manner. In both 2010 and 2011, U.S. News & World Report “Best Law Firms” rankings recognized K&L Gates’ Construction and Engineering practice as a national first-tier construction law practice.
Our practice’s reach extends to all corners of the globe with our lawyers having current or completed projects in over 80 countries including the BRIC and several CEE countries. The scope of this work ranges from complex energy and infrastructure projects to libraries and monuments. With full-time, dedicated construction lawyers resident in most major American cities, K&L Gates has one of the largest and most geographically diverse construction law practices in the United States. Our construction lawyers located throughout Western and Eastern Europe, Asia, Australia, and the Middle East round out one of the most diverse and technically skilled practices in the world.
We assist our clients with the acquisition of new work through our vast network of industry contacts and a wide range of legal services ranging from pre-bid specification review and bid protests to contract and project finance negotiation, contract drafting, and project execution. We also act for public sector clients in drafting and negotiating public tender documents.
Project Development and Finance Our project finance lawyers respond to the diverse, detailed, and innovative legal and commercial requirements applicable to the process of structuring, developing, constructing, and operating economically and legally independent projects and facilities. In developing and structuring projects, we assist in multiple sectors, including governance arrangements and tax-efficient entity structures. We are familiar with international procurement laws, such as the EU procurement directives, which increasingly impact international projects. In the financing phase, our lawyers implement traditional project financing, structured finance, taxable and tax-advantaged debt, equity, and intercreditor arrangements. We collaborate with project sponsors and participants to understand the dynamics of the project from each of their perspectives. We then advise our clients on the best means of achieving their objectives and needs, drawing on the knowledge of our professionals practicing in the areas of tax, insurance coverage, environmental, employment and labor, real estate, and public utilities (among others) to implement our clients’ instructions thoroughly and creatively.
Contract Negotiation and PreparationProper documentation is an important element of any dispute prevention program, and K&L Gates provides clients competitive advantages with assistance in contract negotiations, contract preparation, and coordination and structuring collaborative procurement arrangements such as joint ventures, alliancing and teaming agreements, partnering, and integrated project delivery. The firm advises clients on the drafting and negotiation of all forms of industry contracts, including Engineering Procurement and Construction (EPC) and various forms of Public Private Partnership (PPP) contracts; on bonds, guarantees, letters of credit, and other forms of security; on takeover agreements and amendments to standard forms of contracts, and on structuring complex transactions for development of major infrastructure projects, waste-to-energy plants, coal-fired power plants, cogeneration plants, and industrial plants of all kinds, as well as conventional and unconventional development arrangements for government projects and commercial, retail, and residential projects. Our lawyers also advise clients on international transactions in and with foreign countries, including project and development finance transactions and transactions involving currency hedges and resale of commodities.
Contract Administration Our lawyers actively work with clients to manage the complex relationships that keep a project moving forward. Contract administration services often take the form of “real-time” analyses of change orders, delays, cost overruns, defective specifications, changed conditions, and similar occurrences. The early and continuing involvement of our lawyers in a project assures appropriate project documentation, fact preservation, and contract compliance, thereby enabling clients to make informed decisions consistent with contractual requirements and their overall business objectives while at the same time making decisions that help to avoid claims and litigation down the road.
Project close-out strategies have become increasingly important and often require legal and strategic planning. Closing out or administering a project involving an underfinanced or insolvent party may involve specialized legal advice relating to bankruptcy, bonds, liens, joint check arrangements, and secured transactions. Real estate workouts have become an important component of the firm’s construction practice.
Public Private PartnershipsIn the UK, United States, and Australia, and throughout the world, governments, local councils, and other public bodies are seeking new ways of delivering services to the public. Sponsors, contractors, and funders are also trying to find new ways and structures to develop projects. We regularly advise clients on projects undertaken for the public sector by private companies under all types of Public Private Partnership structures including the many derivations of such projects like Design, Build, Finance (DBF) and Design, Build, Finance, Maintain, and Operate (DBFMO).
Handling Financially Troubled Projects and Bankruptcy Proceedings Our lawyers are experienced with lien rights and priority disputes that are typical of inadequately financed or unsuccessful projects. We work with our construction lending and bankruptcy lawyers to try to find workable solutions on troubled projects. We have represented project owners, lenders, and contractors with respect to a wide variety of issues in construction-related bankruptcy and insolvency proceedings, including representing project owners seeking to reorganize under Chapter 11 of the bankruptcy code as well as creditors and creditors' committees. K&L Gates has also represented receivers in complex state court insolvency proceedings. In addition, firm lawyers have substantial experience working with financially troubled projects and advise clients on means and methods of avoiding bankruptcy and helping to assure project completion.
K&L Gates has a long history of successfully resolving construction disputes among owners, designers, contractors and subcontractors, and their insurers at all levels. In pursuing the right solution for clients, the firm encounters pre-dispute procedures, mediations of all sorts, dispute resolution boards, arbitrations, mini-trials, bench trials, and jury trials or various combinations of one or more of these as well as appellate work. Our lawyers regularly negotiate and litigate issues related to construction contracts with federal, state, and local government agencies, and our experience includes the representation of commercial entities, governmental organizations, and large, quasi-governmental corporations on a broad range of construction projects. Our dispute practice covers the full range of engineering/construction claims as well as related product liability litigation, OSHA defense, labor and employment issues, toxic tort and environmental claims, insurance coverage litigation, intellectual property disputes, and professional liability claims and defense. The firm has successfully represented clients in geographically diverse state and federal trial and appellate courts and before domestic and international arbitration tribunals.
Claim PreparationBecause our construction lawyers possess in-depth experience preparing, evaluating, negotiating, and litigating claims, many of our clients involve us early in the claims process to investigate the facts and circumstances and develop legal theories to support or defend claims. By preparing and presenting a well-developed, well-supported, and persuasive claim, our clients increase their chances of an early and successful resolution of their claims. Our lawyers frequently work with leading consultants to develop critical path and other scheduling analyses and use advanced damages analyses to support or defend delay, disruption, loss of productivity, cumulative impact, wrongful termination, extra work, differing site conditions, unforeseen circumstances, and other types of construction-related claims. Because of our extensive legal and industry experience, we ask consultants to support our work rather than asking them to work up a claim and explain the results of their work afterwards. This allows us to manage consultants so that they are more cost effective to the client.
Negotiating SettlementsK&L Gates strives to assist its construction industry clients in resolving disputes when they arise and before they escalate into expensive and complicated litigation. Through knowledge of substantive law, industry, and technical know-how and negotiating experience, our lawyers quickly develop appropriate negotiating strategies that clients may pursue to maximize the potential for a negotiated settlement and, at the same time, minimize the risks of monetary loss and injury to their important business relationships.
Forensic InvestigationsK&L Gates has extensive experience in conducting forensic investigations concerning façade defects, structural failures, and other design and construction defects occurring in connection with construction projects. As a result of our experience in various engineering and construction disciplines, we are familiar with the terminology, procedures, and methodologies used to isolate the “root cause” of defects and failures. We negotiate site access and evidence preservation agreements. We work with all manner of engineering and other consultants to develop creative pre-litigation solutions, and, if necessary, to present our expert witnesses at trial or arbitration.
Internal Investigations/Preliminary Case AssessmentsWe are engaged frequently to perform confidential internal investigations and preliminary case assessments concerning the history, facts, and legal issues involved in difficult projects, including domestic and international multibillion-dollar megaprojects. As part of the firm’s preliminary assessment, we develop and suggest various strategies for resolving the issues at hand and endeavor to formulate a solid legal and business strategy with the active involvement of our client that incorporates management’s objectives and sensitivities.
Alternative Dispute ResolutionWith the advent and evolution of Alternative Dispute Resolution (ADR), the shapes and forms of dispute resolution are limited only by the creativity of those drafting the dispute resolution procedures contained in the applicable engineering and construction contracts. K&L Gates lawyers are experienced in the many facets of ADR, and a number of the firm’s construction lawyers have acted as adjudicators, arbitrators, or mediators in both domestic and international disputes. Our lawyers have assisted clients in a variety of alternatives to traditional in-court litigation, including mediation, informal proceedings before dispute resolution boards, mini-trials, claim audits, and arbitrators and provide clients with claim prevention and resolution seminars and periodic updates on new and relevant legal developments. We have a proven track record of success in all forms of arbitration.
International ArbitrationMany of our clients are actively pursuing new work all over the world. International construction brings with it a whole host of new and sometimes unusual challenges. When projects go bad, our clients appreciate a steady, experienced counselor at their side. We have acted on some of the world’s largest, highest profile and most complex international arbitrations in this sector. Our experience includes successful results in arbitral proceedings in the United States, Europe, Latin America, Australia, and Asia under all major international arbitration rules including those of the International Centre for Settlement of Investment Disputes (ICSID), International Chamber of Commerce (ICC), International Centre for Dispute Resolution (ICDR), Arbitration Institute of the Stockholm Chamber of Commerce (SCC), Santiago Arbitration and Mediation Center (CAM Santiago), London Court of International Arbitration (LCIA), German Institute for Arbitration (DIS), Singapore International Arbitration Centre (SIAC), Hong Kong International Arbitration Centre (HKIAC) and China International Economic and Trade Arbitration Commission (CIETAC). We also have a proven track record in ad hoc arbitrations under the United Nations Commission on International Trade Law (UNCITRAL) Rules and with investment treaty cases under Multilateral and Bilateral Investment Treaties acting on behalf of both investors and respondent sovereign states. Our arbitration practice has been recognized by prominent publications such as the Global Arbitration Review, Legal 500, and Chambers.
TrialsNot all cases can be settled on terms that are reasonable for our clients, and in those instances K&L Gates lawyers have significant experience in trying complex construction cases. Moreover, while there is a general perception that construction cases are too complex for a jury trial, K&L Gates lawyers have shown otherwise with many successful jury verdicts representing both plaintiffs and defendants. We also are able to achieve better settlements for our clients because we are prepared to take cases to trial when a reasonable settlement is not offered to our clients. We have also tried cases before Government Boards of Contract Appeals and the United States Court of Federal Claims.
Insurance Coverage and SuretyshipOur lawyers are experienced in prosecuting insurance coverage claims arising in connection with construction projects across the world. We also assist clients with insurance related issues before claims arise by, among other things, identifying and evaluating policy terms, conditions, and exclusions and drafting contractual provisions designed to transfer risk, by way of indemnification and insurance. K&L Gates represents owners, contractors, subcontractors, developers, designers, and manufacturers in obtaining and evaluating coverage under a variety of policies. Included among them are builders risk insurance, property insurance, professional indemnity insurance, wrap-up policies [such as owner-controlled insurance policies (OCIP) and contractor-controlled insurance policies (CCIP)], commercial general liability insurance, ocean marine cargo insurance, title insurance, and consequential loss insurance, including delay-in-start-up and efficacy insurance. We also regularly address bonding and suretyship for our construction industry clients and have represented a variety of parties in resolving Miller Act, Little Miller Act, and private payment and performance bond disputes.
K&L Gates has an experienced team of lawyers who assist clients in developing or growing their government-related business. As with our private/commercial practice, K&L Gates provides a broad range of services to assist and advise our contractor clients in all aspects of obtaining and performing government business with a focus on reducing their risks and maximizing their returns. Navigating a business deal with the federal government takes unique experience and an in-depth understanding of both law and policy. Our lawyers know the federal marketplace and have helped to shape the procurement regulation landscape over the past 30-plus years. We have well over a century of experience with federal and state agencies in addition to many years in private practice, providing significant advantages in counseling clients in procurement and contract negotiation matters and, when necessary, litigating on our clients’ behalf.
Our lawyers have worked on federal construction projects around the world. Our experience includes both domestic and overseas work on U.S. embassies, consulates, and large military projects located in North America, Asia, the South Pacific, Caribbean, Europe, and the Middle East.
Competitive BiddingOur lawyers regularly advise clients on a wide variety of procurement issues, including bid protests, bid reformation and withdrawal, solicitation evaluations, and small and disadvantaged business and minority programs. K&L Gates’ experience also includes the protection of rights in intellectual property and trade secrets as well as government procedures for submitting responsive proposals while at the same time protecting proprietary and trade secret information.
Bid ProtestsOur bid protest experience is wide reaching, representing clients in a broad range of areas and bases of protest both from the protester's and intervener’s perspectives. Our representations include: improper evaluations; organizational conflicts of interest; improper or unequal discussions; improper sole source awards; improper assessment of HUBZone and other small business preferences; and virtually all other bases of protest. Our protest representations run the gamut, from run-of-the-mill construction projects to billion dollar radar systems to FAA and defense matters.
Contractor Compliance and Audits and Investigations Government contractors are often held to higher financial and ethical standards than those in the commercial/private marketplace. This is particularly true given recent statutory and regulatory changes that provide heightened reporting and oversight of federal contractors. Our lawyers routinely work with clients accused of improper conduct, including submission of false claims, improper work product, failure to maintain a satisfactory record of business integrity, and contract defaults. These representations include compliance issues, ranging from Small Business Administration (SBA) requirements, to contract review and comment/negotiation and Davis-Bacon and Service Contract Act requirements, as well as the more recent Stimulus Act reporting requirements.
Today more than ever, contractors need to be both efficient and cautious when dealing with government auditors, including the Defense Contract Audit Agency, the Defense Criminal Investigative Service, and various inspectors general offices. These audits have concerned General Services Administration (GSA) pricing issues, defective pricing, overcharges, accounting methods, and various compliance issues relating to the Foreign Military Financing program. K&L Gates also has significant experience in addressing investigations conducted by various oversight agencies such as the Department of Justice and the Federal Bureau of Investigation relating to alleged contractor fraud and civil and criminal wrongdoing.
Contract PricingOur lawyers help contractors respond to a broad range of pricing issues arising under fixed-price, cost-reimbursement, and sole-source government contracts, including advising clients on the provision of cost or pricing data to the government, helping clients structure cost proposals for submission to the government, counseling clients in connection with defective pricing and disclosure issues, and advising clients regarding price reductions clause in MAS contracts.
Small and Small Disadvantaged BusinessesOur lawyers regularly advise small and small disadvantaged business concerns that perform or seek to perform under special government contract programs, including the 8(a) Business Development Program, HUBZone Empowerment Contracting Program, women-owned small businesses, veteran-owned small businesses, service-disabled veteran-owned small businesses, and Native American businesses.
We advise clients on size issues, set-aside opportunities, program eligibility, subcontracting plans, negotiations, protests, and litigation. We also counsel small business concerns so they can accomplish their business goals, while remaining eligible for various government contract programs. We also actively represent clients in size and status protests before the SBA and its Office of Hearings and Appeals.
K&L Gates lawyers have experience in several practice areas that are emerging as hot issues for construction and engineering clients.
Integrating E-Commerce, Intellectual Property, and Technology into ProjectsOur construction and engineering lawyers work with our leading e-merging commerce and intellectual property lawyers to advise construction industry clients with respect to new issues arising out of doing business in an ever increasing technology-intensive environment and often on projects for technology-based clients. We bring innovative strategies for working in Building Information Modeling (BIM) and similar environments. We also advise clients with respect to use of the internet in their businesses and the latest developments in e-commerce rules. We have worked on traditional energy, alternative energy, data center, clean room, and other technology related projects throughout the world. In additional to transactional work, our lawyers have advised and represented clients in disputes related to the construction, design, performance, and maintenance of these facilities. We work with our intellectual property lawyers to vigorously secure and protect the copyright and ownership of design drawings, secure patent rights, and take other steps to protect emergent building and design technologies. We have developed sophisticated intellectual property protection strategies for cutting–edge, sustainable building design and other construction and design technologies.
Clean Tech/Alternative EnergyWe regularly assist clients who are committed to the development of clean and alternative energy technologies such as solar, wind, and geothermal. Our construction and engineering lawyers, together with our lawyers from affiliated practices, provide services throughout the process of invention, design development, piloting, scale-up, development, financing, commercialization, regulatory authorization, construction, commissioning, and performance testing. Our lawyers draft contracts for all aspects of design, manufacturing, construction, and retrofitting efforts using a wide variety of delivery systems and innovative approaches. As necessary, our litigators assist with disputes involving protection of inventions, delays, disruptions, cost overruns, and warranties that can occur on process and alternative energy plant and retrofitting projects.
Sustainability/Green BuildingOur lawyers advise clients regarding the fast-developing and ever-changing sustainable building certification process, legislation, and incentive programs being instituted at local, regional, and national levels in countries throughout the world. Over 60 of our lawyers are LEED® Accredited Professionals. Our lawyers assist clients with contract and lease negotiation and drafting on retrofitting, new construction, build-outs, and other sustainability/green building projects. We advise clients regarding the novel liability and insurance coverage issues associated with sustainability/green building projects. Our intellectual property lawyers develop sophisticated intellectual property protection strategies for cutting-edge sustainable building design.
New Building Product and Material FailuresOur lawyers keep abreast and advise clients concerning the latest developments in building products and materials defects claims, whether the problem has been toxic mold, exterior insulation finishing systems (EIFS), imported Chinese drywall, or prematurely deteriorating “next generation” roofing systems. We have advised owners of buildings (both commercial and residential), developers, manufacturers, architects, engineers, and contractors in connection with respect to liability, insurance coverage, investigation, testing, and remediation methods when defective products are suspected or alleged.
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