Construction and engineering are arguably the world’s largest industries. They are fast-paced and governed by strict deadlines. Building a successful project requires cooperation and teamwork among architects, engineers, contractors, subcontractors and many others. Our lawyers understand the industry from finance, development and design through implementation, construction and close-out. Drawing upon our legal and technical expertise, we work with our clients to minimize disputes and accomplish common project goals – locally, nationally and internationally. Our ability to anticipate, address and prevent the myriad of problems that can arise during any phase of a construction project provides real value to our clients and enhances their bottom line.

Many of our practice group lawyers have worked in the construction, engineering, architecture, and building materials industries or in the government agencies that interface with these industries. Some of them have work experience as civil, structural, mechanical and chemical engineers. Others have been construction and engineering project managers or have worked in the legal departments of companies devoted to these industries.  Still others have military experience in these disciplines.

This practical, “real-world” experience, combined with the breadth of our practice, allows us to deliver added value to your construction and engineering problems in both the private and public sectors.  Additionally, the substantive knowledge of applicable laws, rules and regulations possessed by our construction and engineering lawyers, when combined with our experience in the industry, permits us to deliver legal services in a personal, results-oriented and cost-efficient manner.

As part of a full-service international law firm, K&L Gates’ Construction and Engineering Practice Group draws on the experience and resources of the entire firm. Related practice groups within K&L Gates are frequently called upon to advise and, as necessary, represent construction and engineering group clients, including project finance, tax, real estate, land use, corporate, securities, environmental, toxic torts, insurance, intellectual property, e-discovery, and labor and employment

Our Core Competency
We are a group of construction and engineering lawyers who assist our clients with the everyday issues and battles that are part of the construction and engineering industries.  Our core practice areas are construction project support, dispute resolution and government contracting.  Within these, we focus on all phases of a construction project, starting with development, structuring and finance issues, all the way through adjudication or arbitration proceedings or litigation of claims.  These foundational areas of practice in the construction and engineering industries are described in more detail below.

Foundation Practice Areas
As mentioned above, our core practices are construction project support, dispute resolution and government contracting.  The following is a description of our capabilities in these areas.

Construction Project Support
Procurement
We advise our clients on acquisition of work through services ranging from pre-bid specification review and bid protests to contract and project finance negotiation, drafting and execution.  We also act for public sector clients in drafting and negotiating public tender documents.

Competitive Bidding
In order to facilitate competitive proposals for the acquisition of profitable commercial and government work, our clients frequently consult with us on procurement issues.  In the government contracting area, we advise clients on a variety of procurement issues, including bid protests, bid reformations, bid withdrawals, evaluations of invitations for bids, government grant procurements and negotiation for and qualification of small and disadvantaged business and minority programs.  We also advise on international procurement legislation.  Our experience includes the legal and regulatory aspects of the protection of rights in technical data and computer software, as well as government procedures for submitting fully responsive proposals while at the same time protecting proprietary and trade secret information.

Debarments
In the arena of government contracting, we have reduced in scope or eliminated entirely proposed government debarments or suspensions.  Where necessary, we draw on the skills of other lawyers in the firm who are experienced in civil and criminal fraud.  We have represented clients in investigations initiated by various Inspectors General, the FBI, the Defense Contract Audit Agency, the Department of Housing and Urban Development, the Environmental Protection Agency and the Department of Justice.

Contract Negotiation and Preparation
Proper documentation is an important element of any dispute prevention program.  We give our clients competitive advantages through contract negotiations, contract preparation and coordination and structuring unusual procurement arrangements such as joint ventures, alliancing and teaming agreements, partnering and takeover agreements.  We advise our clients on the drafting and negotiation of EPC contracts; on bonds, guarantees, letters of credit and other forms of security; and on amendments to standard forms of contracts, such as FIDIC, the NEC, I CHEM E, the JCT and ICE forms.  We also advise our clients on structuring complex transactions for development of major infrastructure projects, waste-to-energy plants, GTL, LNG, coal-fired power plants, cogeneration plants and industrial plants, as well as conventional and unconventional development arrangements for government projects and commercial, retail and residential projects.  We advise our 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
We actively work with our clients to manage the complex relationships that keep a project moving.  Contract administration services often take the form of “real-time” analyses of change orders, delays, cost overruns, defective specifications, changed conditions and similar occurrences.  Early and continuing involvement of our lawyers in a project assures appropriate project documentation, fact preservation and contract compliance, thereby enabling our clients to make informed decisions consistent with their overall business objectives.

Project close-out strategies have become increasingly important and often require legal and strategic planning.  A project encumbered by claims often requires special payment conditions, particularized settlement agreements and liquidating agreements.  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 our construction practice.

Public/Private Partnerships
In the U.K., U.S. and throughout the world, governments, local councils and public bodies are seeking to find new ways of delivering services to the public.  Sponsors, contractors and funders are also trying to find new ways and structures to develop projects.  The work of our Construction and Engineering Practice Group includes advising on projects undertaken for the public sector by private companies under the Private Finance Initiative (PFI) and Public Private Partnership (PPP) structures.  We advise on PFI/PPP structures, infrastructure projects, procurement law, project finance, outsourcing and dispute resolution.

• PFI/PPP
  We have a reputation for devising original and innovative solutions that bring PFI/PPP projects to a successful conclusion.
  
  
• Infrastructure projects
  We have advised on significant domestic and international developments, using our construction and finance capabilities.
  
  
• Procurement law
  We have considerable experience in advising on the EU’s procurement directives and associated national rules.  We advise on their applicability to and implementation on appropriate projects.
  
  
• Project finance
  We advise banks, governments and the private sector on structuring funding for projects that have unusual requirements and require innovative solutions. 
  
  
• Outsourcing
  We advise clients on structuring outsourcing transactions, covering services such as cleaning, catering, refuse disposal, facilities management and IT, and on negotiating the documentation for transactions in this area.
  
  
• Dispute resolution
  As the number of signed PPP projects grows, it is inevitable that disputes arise on some of them.  We have been asked for our independent analysis of and advice on a number of existing PPP projects, as well as acting on disputes relating to such projects.

Alliancing and Partnering Agreements
We have developed, in association with key clients, novel methods of alliancing and partnering which are aimed at creating win/win situations for owners and contractors alike.  These gain/pain share mechanisms are aimed at aligning all parties’ interests toward project objectives and incentivizing their relationship.  In tandem with these developments, we have been in discussions with the insurance market about the development of new project insurances that will respond on a “no blame” basis.

Corporate Counseling
As part of our multidimensional practice, we advise our construction industry clients and offer industry insights on a variety of operating and corporate issues and strategies.  Whether for union or merit shop contractors, our labor advice frequently includes analysis for and creation of legally defensible double-breasted operations, advice respecting union certification or decertification campaigns, picket control, compliance reviews under Davis Bacon and similar state prevailing wage statutes and defense of discrimination actions and OSHA citations.  We also advise on employee transfer and pensions issues when there is a change of service provider in a long-term project.  Other frequent operating issues include insurance, workmen’s compensation, bonding and tax analysis and program structuring and environmental advice related to audits, specific conditions, property sales or property development.

• Frequently arising corporate issues on which we are called upon for advice include strategies for capital augmentation, acquisition of project or general financing, ownership succession plans for closely held companies and executive compensation, stock, incentive and employee benefit plans. 
  
  
• We regularly assist our clients in corporate restructurings, subsidiary or division creation or dissolution, mergers, acquisitions, reorganizations and dispositions.
  
  
• The firm also has experience in regulatory requirements pertaining to the merger, sale or acquisition of government defense contractors.  These transactions may entail specialized risks relating to government approval and contract requirements.

Dispute Resolution
The firm has a long history of successfully resolving construction disputes among owners, insurers, designers, contractors and subcontractors at all levels.  In pursuing the right solution for our clients, we encounter pre-dispute procedures, mediations of all sorts, dispute resolution boards, nonbinding procedures, administrative arbitrations, ad hoc arbitrations, mini-trials, bench trials and jury trials or various combinations of one or more of these as well as  appellate work.   We 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 both domestic and foreign construction projects.  The following illustrate some of our experience with dispute resolution:

Claim Preparation 
Because of our in-depth experience preparing, evaluating, negotiating and litigating claims, many of our clients involve us early in the process to investigate the facts and circumstances and develop legal theories to support claims.  By preparing and presenting a well-developed, supported and persuasive claim, our clients increase the chances of an early and successful resolution of the claim. 

Negotiating Settlements
We strive to assist our 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 expertise and negotiating experience, our lawyers quickly develop legal and negotiating strategies that our 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.  If litigation develops, we continue our attempts to create, identify and evaluate settlement opportunities that are cost- and result-oriented.  Even if an early settlement is not possible in multiparty litigation, which more often than not is the case, it is important to consider joint defense agreements, liquidating agreements, high-low agreements, confidentiality agreements, cooperation agreements, tolling agreements and other related agreements.  If and when a case is settled, it is of paramount importance that the agreement be structured to fit the circumstances of each unique case, including the scope of releases, the survival of any claims, warranty issues, indemnity concerns and intellectual property issues.

Alternative Dispute Resolution Techniques
With the advent 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.

We are experienced in the many facets of alternative dispute resolution, and a number of our construction lawyers have acted as adjudicators, arbitrators or mediators in both domestic and international disputes.  We have assisted clients in a variety of alternatives to litigation, including mediation, informal proceedings before dispute resolution boards, mini-trials and claim audits.  We provide our clients with claim prevention and resolution seminars and periodic updates on new and relevant legal developments.

Litigation Support
We use sophisticated technology to support our construction and engineering litigation efforts.  Our systems are capable of: (1) document control, access and analysis; (2) cost accumulation and analysis; and (3) the preparation of graphic presentations.  Indeed, K&L Gates’ e-Discovery Analysis and Technology (e-DAT) Group uses proprietary technology and specially trained lawyers to assimilate large volumes of electronic data, including email and other electronic documents.  This process helps us to both produce claims that are better supported and, therefore, more likely to be resolved through negotiation, and save money during discovery.  The e-Discovery Analysis and Technology (e-DAT) Group's comprehensive electronic discovery and document production services have demonstrated savings of up to 30-50 percent for many complex litigation cases.

We utilize client personnel in concert with firm paraprofessionals to organize, analyze and graphically present and summarize the enormous quantity of documents and information associated with most construction-related claims.  In order to reduce costs, we use outside vendors for many of the routine document management functions.  K&L Gates prides itself on being a technologically advanced firm, as we recognize the benefit to our clients.  We also have worked with a number of outside consultants to hone our presentations to our audiences, be they judges, juries or arbitrators.

Litigation and Arbitration
Our trial practice includes the litigation of a wide range of construction-related claims as well as product liability litigation, OSHA defense, toxic tort and environmental claims, insurance coverage litigation, and professional liability claims and defense.  We have represented clients in geographically diverse state and federal trial and appellate courts and before domestic and international arbitration tribunals.  Our List of Representative Engagements describes in some detail the disputes we have resolved and the forums in which the disputes were filed.

Government Claims Boards
Claims, disputes and disagreements are, unfortunately, routine for companies that do business with the federal government and state and local agencies.  From claim preparation and negotiation to litigation or alternative dispute resolution, K&L Gates has the team in place to help our government contractor clients achieve their business goals.  We are uniquely suited to resolve claims and disputes with the federal government.

Our government contract litigators have decades of experience recovering millions of dollars on behalf of government contractors.  Many of us came from government service and have represented the government in these disputes.  We know how to make the process work for our clients.
 
Adjudication
We are experienced in dealing with adjudications in the U.K. construction and engineering field.  This is a dispute resolution procedure for certain types of construction contracts.  Disputes are dealt with quickly, particularly if payments are due.  A number of issues arise out of adjudication, and we deal with cases relating to jurisdiction and the enforcement of adjudicators’ decisions.  A number of our lawyers are accredited adjudicators.

Government Contracting
From identifying opportunities to sell services to the government, to keeping clients abreast of legal and policy developments affecting their businesses, to seeking congressional assistance to further a client’s business objectives, K&L Gates has an experienced team of lawyers who can assist our clients in developing or growing their business with the government.

Navigating a business deal with the federal government takes experience and an in-depth understanding of policy.  At K&L Gates, our more than 20 government contracts law and procurement policy lawyers have both.  We know the federal marketplace and have helped to shape the procurement regulation landscape during the last 20 years.

Collectively, we have decades of practice at federal and state agencies in addition to many years in private practice.  We draw on this experience when we counsel clients in procurement matters, negotiate with relevant governmental agencies and, when necessary, litigate on our clients’ behalf.  Highlights of the group’s professional experience include:

• Author of the leading law textbook, Government Contract Law , now in its 2nd Edition;
  
  
• Former investigator for congressional committees in both the U.S. House of Representatives and the U.S. Senate; 
  
  
• Three active professors, including two adjunct professors at Washington & Lee Law School; 
  
  
• Former general counsel for a Top 5 GSA Schedule 70 contractor; 
  
  
• Former counsel to the U.S. House of Representatives Committee on Armed Services and the House of Representatives Select Committee to Investigate the Activities of the Central Intelligence Agency; 
  
  
• Former senior advisor to the secretary for environmental affairs at the U.S. Department of Energy; 
  
  
• Former missile material management specialist in the U.S. Army; 
  
  
• Former engineering manager for the U.S. Navy; 
  
  
• Former undersecretary of the State and Consumer Services Agency in California; 
  
  
• Active members of the American Bar Association’s Public Contract Law Section; and 
  
  
• Years of experience as speakers and presenters for Federal Publications Seminars LLC and various other organizations.

Federal Government Contracting
Contracting Procedures 
We provide a broad range of services to help contractors obtain government business, while at the same time reducing their risk and maximizing protection of key company assets and interests, including:

• Advising contractors about government competition requirements; 
  
  
• Helping contractors to structure responses to government RFPs, RFQs, ITBs, etc;
  
  
• Drafting and helping to negotiate terms and conditions for prime contracts, subcontracts, reseller agreements, distributor agreements, etc;
  
  
• Counseling contractors on the use of commercial terms and conditions;
  
  
• Helping contractors to protect intellectual property rights;
  
  
• Assisting contractors in connection with government responsibility determinations;
  
  
• Advising contractors on contract certifications; and
  
  
• Helping contractors to negotiate CRADAS.

Contractor Compliance 
Government contractors can often be held to higher standards than those prevalent in the commercial marketplace.  As a result, we have substantial experience in working with clients that have been accused of improper conduct, including submission of false claims, improper work product and the failure to maintain a satisfactory record of business integrity.  Proper and immediate attention to such allegations can often minimize negative results. 

Audits and Investigations 
Unlike the world of commercial contracting, the federal government often has the right to audit its contractors.  This process can be both time-consuming and risky for contractors.  Accordingly, contractors need to be both efficient and cautious when dealing with government auditors.  K&L Gates’ lawyers’ have experience in responding to audits conducted by the Defense Contract Audit Agency, the Defense Criminal Investigative Service and various inspectors general’s offices.  These audits have concerned GSA pricing issues, defective pricing, overcharges, accounting methods and various compliance issues relating to the Foreign Military Financing program.  Our attorneys also have significant experience in dealing with investigations conducted by inspectors general’s offices, the Department of Justice and the Federal Bureau of Investigation relating to alleged contractor fraud and civil and criminal wrongdoing. 

Socioeconomic Compliance 
Government contracts include numerous socioeconomic requirements that require contractor compliance, including country preference laws such as the Buy American Act, Trade Agreements Act and Foreign Military Sales; equal employment and affirmative action plan requirements; and labor standards, including the Service Contract Act.  We are able to assist our clients in ensuring full compliance with these mandatory requirements and in responding to questions and issues when they arise. 

Contract Pricing 
We help contractors respond to a broad range of pricing issues arising under fixed-price, cost-reimbursement and sole-source government contracts, including:

• Advising clients about whether and how to provide cost or pricing data to the government;
  
  
• Helping clients to structure cost proposals submitted to the government;
  
  
• Counseling clients in connection with defective pricing and disclosure issues; and
  
  
• Advising clients regarding price reductions clause in MAS contracts.

State and Local Government Contracting
While state and local procurement requirements are challenging, they offer a multitude of opportunities for public entities and private businesses.  K&L Gates lawyers help clients navigate through the many facets of state and local procurement laws, regulations, policies and procedures.  We regularly counsel and represent both public and private clients on state and local bidding, procurement and contract issues.

School District Construction
We have extensive experience assisting school districts with capital facilities projects, from the initial due diligence review of potential sites through the construction process.  We represent numerous school districts relating to the design and construction of new and remodeled/renovated school facilities, including the drafting and negotiation of design and contractor contracts, and the resolution of disputes arising from the projects.

Our lawyers have assisted many school districts with architect selection, construction bids, contracts, change orders and construction litigation.  We also have extensive experience with the general contractor/construction manager procurement method and new requirements concerning "green schools."  Assisting districts with school facility siting, design and construction issues is a significant and growing part of our practice.

Small and Small Disadvantaged Businesses
K&L Gates’ lawyers regularly advise small and small disadvantaged business concerns that perform or seek to perform under special government contract programs, including:

• 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 counsel small business concerns so they can accomplish their business goals, while remaining eligible for various government contract programs.  Representative matters include:

• Advising clients on small business size determinations;
• Advising clients on 8(a) Business Development Program applications;
• Advising clients on 8(a) Mentor/Protégé agreements;
• Prosecuting and defending HUBZone protests; and
• Researching government contracting opportunities for small businesses.

In addition, we regularly advise large businesses and prime contractors with respect to small business issues, including subcontracting plans, subcontracts and teaming agreements.

Emergent Practice Areas
While our core competency is in the fundamentals of construction project support, dispute resolution and government contracts, we have, within this broad arena, experience in several practice areas that are emerging as hot issues for our construction and engineering clients.  The following is a brief description of several of these emergent practice areas.

Internal Investigations/Preliminary Case Assessments
We have been engaged frequently to perform confidential internal investigations and preliminary case assessments concerning the history, facts and legal issues involved in numerous projects, including domestic and international multibillion-dollar megaprojects.  In this phase, we strive to learn “the good, the bad and the ugly” about a project in order to provide management with meaningful and credible advice.  As part of our preliminary assessment, we develop and suggest various strategies for resolving the issues at hand, which may include a variety of options that are cost- and time- dependent.  We endeavor to formulate a solid legal and business strategy with the active involvement of our client that incorporates management’s objectives and sensitivities.  As the saying goes, “with a plan you have a chance to succeed, without one you surely will not.” 

Forensic Investigations
K&L Gates has extensive experience in conducting a wide variety of forensic investigations concerning design and construction defects and damage claims occurring in connection with construction projects.  As a result of our experience in various engineering and construction disciplines, we are accustomed to the terminology, procedures and methodologies used to isolate the “root cause” of defects and failures.  We customarily interview and, with the assistance of our clients select, properly qualified experts who perform the investigation, write expert reports and, if necessary, testify in court.  Briefly discussed below are two representative engagements.

• K&L Gates represented the owner of a multibillion-dollar public works infrastructure megaproject.  In connection with that representation, the firm was responsible for conducting a forensic investigation of a $300+ million immersed tube tunnel project.  The forensic investigation focused on the cause of leaks in underwater closures that consisted of sheet pile walls, tremie concrete and grout bags that were designed to act as water cutoffs.  The forensic investigation also focused on the contractor’s claims that adjoining deep soil mix was the cause of the leaks.  We located, retained and worked with engineers and experts in marine design and construction to determine the cause of the leaks.  The forensic investigation determined that the primary causes of the leaks were improper construction of a sheet pile wall and failures of grout bags.
  
  
• K&L Gates represented the turnkey design/build contractor on a $100+ million coke oven rebuild project.  The owner’s allegations of project nonconformities and a shortened design life required K&L Gates to assemble a team of experts to perform a detailed and extensive finite element analysis of the facility.  This and other related studies supported the contractor’s position that the nonconformities were “cosmetic only” and had no impact on the project’s design life.  Following extensive discovery and an extended mediation, all litigation was settled favorably to our client.

Insurance Coverage for Construction Projects
Our lawyers have extensive experience in prosecuting insurance coverage claims arising in connection with construction and engineering projects, including claims for coverage for construction defects.  The firm has represented owners, contractors, subcontractors and engineers in obtaining coverage under builders risk insurance, professional indemnity insurance, commercial general liability insurance, ocean marine cargo insurance and consequential loss insurance, including delay-in-start-up and efficacy insurance.  Briefly discussed below is one representative engagement.

• K&L Gates represented the owner of a power project against its ocean marine carrier on a delay-in-start-up claim.  Power plant equipment was damaged during shipment from Japan to the United States when the vessel transporting the equipment encountered a typhoon.  The owner incurred additional costs to mitigate resultant delays.  The carrier denied coverage based on a claim of no coverage because the owner/contractor failed to obtain a survey warranty.  Upon the owner/contractor’s motion for summary judgment, the trial court held that the owner/contractor’s claim was covered under the applicable policy.  The trial court’s judgment was affirmed on appeal.  See Assicurazioni Generali S.P.A. v. Black & Veatch , 362 F.3d 1108 (8th Cir. 2004).

Handling Financially Troubled Projects
Difficult economic conditions and increased competition in the construction industry have resulted in an increase in construction-related bankruptcy filings and the incidence of financially troubled projects.  The past several years have seen bankruptcy filings by several venerable firms in the construction industry.  K&L Gates has represented project owners and contractors with respect to a wide variety of issues in construction-related bankruptcies and the unique issues that are presented by bankruptcy proceedings.  In addition, K&L Gates has gained substantial experience working with financially troubled projects to avoid bankruptcy and help assure project completion.  K&L Gates lawyers have utilized innovative approaches to solve financial problems that involve not just owners and contractors, but sureties and other financial institutions.

K&L Gates has represented clients in the following significant construction-related bankruptcy proceedings:

• In re:  Enron Corporation , Docket No. 01-16034 (AJG)
  (U.S. Bankruptcy Court for the Southern District of New York);
  
  
• In re:  Kaiser Group International, Inc., Docket No. 00-2263 (GMS)
  (U.S. Bankruptcy Court for the District of Delaware);
  
  
• In re:  LTV Steel Company, Inc., Docket No. 00-43866
  (U.S. Bankruptcy Court for the Northern District of Ohio);
  
  
• In re:  Ponderosa Fibres of Pennsylvania Partnership , Docket No. 98-21953 (U.S. Bankruptcy Court for the Eastern District of Pennsylvania);
  
  
• In re:  Stone & Webster Engineering Corp ., Docket No. 00-02213 (RRM)
  (U.S. Bankruptcy Court for the District of Delaware); and
  
  
• In re: Mid-Valley, Inc., et al., Case No. 03-35592 (JKF)
  (U.S. Bankruptcy Court for the Western District of Pennsylvania).

Architect/Engineer Malpractice Claims
In our practice we prosecute or defend against claims both for and against architects and engineers relating to professional malpractice.  These types of claims, which involve specifications, drawings, supervision and engineering judgment, are closely related to the other types of construction cases that appear on our separate listing of representative matters.

Toxic Mold Litigation
Our lawyers represent owners of buildings (both commercial and residential) where the structure has been contaminated with toxic mold.  Experience in this area is growing in importance since toxic mold cases are on the rise.  We prosecute claims against architects, engineers, bonding companies, contractors and insurance companies.  We are familiar with the science of mold, health effects of exposure to mold and microtoxins, testing methods and remediation methods used to clear a contaminated structure.

For more information about the K&L Gates Construction and Engineering Practice, please visit our blog at http://www.klconstructionlawblog.com.