Pierce Atwood’s construction lawyers advise owners, developers, general contractors, subcontractors, and suppliers on construction-related matters throughout the life of a project.

Our construction attorneys guide clients through the complicated legal and regulatory environments in which they must operate. We work to anticipate and prevent disputes and claims that can threaten a project’s success and our clients’ relationships with project stakeholders.

When disputes arise, our construction group is comprised of industry-leading lawyers who employ innovative techniques to efficiently resolve disputes whether through federal or state court proceedings, arbitration, mediation, or other forms of alternative dispute resolution.

As a multiservice law firm, Pierce Atwood’s construction clients benefit from working with a single firm that can provide expansive representation. They know they can rely on Pierce Atwood attorneys to assist with:

  • Negotiation and administration of contract documents whether standard form documents such as AIA Contract Documents and ConsensusDocs or manuscript documents such as engineering, procurement, and construction (EPC) contracts
  • Consultation regarding the delivery method to select for a construction project whether design-bid-build, design build, EPC, or integrated project delivery (IPD)
  • Coordination of the construction contracts owners have with various stakeholders (architects, engineers, construction managers, general contractors) to ensure the contracts are consistent and complement each other
  • Prosecution and defense of bid protests and other administrative proceedings with public awarding authorities including licensing, labor classification, project labor agreement, and other issues
  • Real estate acquisitions, permitting, development and financing
  • Labor-related and general employment issues, including non-compete and gender, age, race, and handicap discrimination claims
  • Guidance regarding the implementation of practices and protocols to mitigate risk and to increase the likelihood of receiving payment for services rendered
  • Preservation and enforcement of contractual and statutory rights including mechanic’s lien claims, payment bond claims, and performance bond claims
  • Negotiation of issues that arise during the performance of the construction operations so as to reduce disputes and delays
  • Prosecution and defense of construction claims in all courts and in arbitration proceedings

And, in an industry where controlling costs is both a challenge and a necessity, clients find our legal fees to be transparent and predictable, which helps them manage their budgets confidently and effectively.

Our reputation as thought leaders in the construction industry is reflected in our attorneys’ active participation in bar activities and industry groups such as the American College of Construction Lawyers, ABA Forum on Construction Law, National Construction Dispute Resolution Committee (NCDRC), Associated General Contractors (AGC), Associated Builders and Contractors (ABC), Construction Industries of Massachusetts (CIM), and the American Arbitration Association (AAA).

Visit the Solid Foundation blog where Pierce Atwood’s construction lawyers discuss construction related topics of interest to construction industry.

Representative Experience

We secured an arbitration award in excess of $5 million on behalf of a general contractor. The arbitration award was for a breach of contract/cumulative impact claim against the developer of a high end waterfront residential condominium project. The award exceeded the Guaranteed Maximum Price, as adjusted by change order.

$5 Million Arbitration Award for General Contractor

Represented a construction manager seeking payment for labor and materials (plus profit) provided to a luxury condominium developer, prior to termination. Required to prove that the termination was for convenience and then to prove damages, which was challenging due to the manner in which financial records were maintained.  The developer offered nothing to settle until first day of hearings, when he offered slightly less than $1 million.  Ultimately an award was issued providing for payment to construction manager of slightly more than $5 million, representing almost a 100% recovery plus interest.

Award for Construction Manager in Payment Dispute

Represented the developer of limited service hotel in dispute with construction manager, leading to construction manager’s termination of the contract, arguing material breaches by the developer. The matter went through mediation and then arbitration with award being issued in favor of developer for cover. The proceeding also involved peripheral disputes with various trades who had liens on the project.

Award for Developer of Limited Service Hotel

Represented “parts and smarts” subcontractor in dispute with 2d tier subcontractor in construction of major retail shopping mall.  The 2d tier subcontractor claimed $1 million plus in impact damages arising out of project acceleration and also claimed damages owing to alleged latent ambiguity in plans. Won an award finding no liability.

Award for Subcontractor in Dispute with 2d Tier Subcontractor

Served as chair of arbitration panel addressing claims by public owner against Design Builder of waste-to-energy generating equipment.  Following issuance of award against Design Builder, at the request of the Design Builder, successfully mediated a resolution in a follow-up dispute with its vendors/subcontractors and consultants.

Chaired Arbitration Panel Concerning Waste-to-Energy Generating Equipment

In a case that should be of interest to manufacturers and distributors, and especially to suppliers of building products, Pierce Atwood’s class action defense team defeated class certification in a building products case in the District of Massachusetts. Plaintiffs alleged defective design and manufacture of decking sold by our client. After extensive fact and expert discovery, Plaintiffs filed a motion for class certification, and a hearing was held. On September 21, 2015, District Judge Denise Casper issued her decision denying Plaintiffs’ motion, ruling that individualized issues of causation and injury precluded findings of commonality, typicality and adequacy under Federal Rule of Civil Procedure 23(a). The judge based her ruling, in part, on evidence that only a small percentage of purchasers had reported problems with the decking, and that almost all of the warranty claims those purchasers submitted had been honored.

Class Certification Victory in Building Products Case

John Bulman is currently sitting on a Dispute Review Board for a nuclear power plant construction project. Industry professionals are chosen to sit on Dispute Review Boards by the interested parties involved with a construction project for their experience, their independence, their commitment to the project, and their training as mediators and arbitrators. 

Dispute Review Board for Nuclear Power Plant Construction Project

In a matter recognized by Rhode Island Lawyers Weekly as one of the most important opinions of 2012, we obtained a favorable order for a general contractor seeking to enforce an Ohio arbitration clause. The matter was of particular importance because it was the first time a court concluded that the Federal Arbitration Act preempted a Rhode Island statute that prohibits out-of-state arbitration in certain construction matters.

Favorable Order in Enforcement of Ohio Arbitration Clause

Obtained a favorable settlement for an owner of a spiritual retreat facility against its contractor and design professionals through a seven-party mediation following an incident that involved a burst sprinkler pipe, substantial property damage, and discovery of pervasive latent construction defects. Before the mediation, Pierce Atwood worked closely with the owner and the owner’s representatives to review the defective conditions and press for performance of the remedial work by the construction and design professionals.  Multiple demands on the contractor’s performance bond had to be made to ensure performance of the corrective and incomplete work.  Once the work was completed, Pierce Atwood represented the owner in the multi-party mediation that dealt with challenging issues involving construction defects with the fire protection system, reimbursement for additional costs due to the delayed project, complex insurance coverage issues (including with the owner’s property insurer), contract terms (waiver of subrogation, waiver of consequential damages), continuing warranty obligations, and the scope and finality of the release. At the end of the mediation process, the owner was paid for costs it incurred during the delayed project and it paid nothing against the claims submitted by its contractor and design professionals.

Favorable Settlement in Seven-Party Mediation

First Circuit Affirms Challenge to Local Ordinance Restricting Competition on City Projects: In a case of first impression, and on behalf of Merit Construction Alliance and its members, we successfully challenged the enforcement by the City of Quincy (Mass.) of the residency, apprenticeship and health and welfare benefits provisions of its so-called “Responsible Employer Ordinance” in the U.S. District Court for the District of Massachusetts. The First Circuit Court of Appeals affirmed the lower court's ruling, holding that the Responsible Employer Ordinance (REO) is unconstitutional under the Privileges and Immunities Clause of the U.S. Constitution, and is preempted by the federal Employee Retirement Income Security Act. The decision has wide-ranging implications, as there are some 20 or more municipalities in the Commonwealth with similar ordinances, which are now vulnerable because they are arguably unenforceable.

First Circuit Affirms Challenge to City of Quincy Ordinance Restricting Competition on City Projects

We represented a leading energy provider in mediation of approximately $150 million in related claims by two contractors arising out of a $1.55 billion transmission line construction project.  The claims arose from an allegation that environmental compliance on the project was overly restrictive, leading to both delay and significantly increased costs of compliance.  After two days of mediation per claim that included presentations by expert witnesses, we resolved the disputes for a fraction of the requested amount. 

Mediation in Transmission Line Construction Project

We successfully defended our clients Turner Construction Company and Stryker Biotech in a case that settled important issues of contract and evidence law affecting New Hampshire litigants. In Axenics, Inc. v. Turner Construction Company the New Hampshire Supreme Court ruled in favor of our clients that (1) a subcontractor cannot bring an unjust enrichment claim against an owner who has paid the general contractor in full, and (2) internal memoranda, work product, or other materials created for the purpose of settlement cannot be used at trial as evidence of liability or damages, even if they are never conveyed to the other side. This hotly-contested case came to the Supreme Court on appeal of a $1 million-plus judgment for the plaintiff-subcontractor, after an eighteen-day bench trial before Merrimack County Superior Court and Business and Commercial Dispute Docket Judge Richard McNamara.

NH Supreme Court Clarifies Unjust Enrichment Doctrine in Construction Cases

Served as chair of a panel addressing the termination of construction manager on a major biophysics research building.  Beyond overseeing highly contentious proceedings, issued lengthy decision construing scope of section 4-61 of the Connecticut General Statutes, the Connecticut dispute resolution law pertaining to this public construction contract.  Decision was subject to judicial review and was affirmed.

Panel Chair in Public Construction Contract Dispute

We assisted a client in providing post-bankruptcy financing of approximately $70 million through mortgage and sale/leaseback arrangements on facilities in 10 states, and was heavily involved in the plan confirmation proceeding. Alterra Healthcare Corp. (Bankr. D. Del.).

Post-Bankruptcy Financing via Mortgage and Sale/Leaseback Arrangements

On behalf of our client Iberdrola Energy Projects, Inc., we successfully negotiated a project labor agreement (PLA) with more than 24 trade unions for the construction of a $750 million combined-cycle gas turbine (CCGT) electric generating power plant in Salem, Massachusetts. This challenging project was made more complex by months of unanticipated delays relating to environmental permitting and financing issues. Nevertheless, construction commenced in April 2015, and when complete the new CCGT plan will supply electricity to more than 600,000 homes while lowering regional greenhouse gas emissions.

Salem Harbor Redevelopment Project Labor Agreement

Pierce Atwood delivered a successful outcome to the regional sewer authority Narragansett Bay Commission (NBC) at an American Arbitration Association (AAA) construction arbitration relating to a claim that a differing site condition impacted the installation of a concrete drop shaft.  The 30-foot diameter drop shaft was 220 feet deep and connected to the NBC’s one-mile long retention tunnel designed to capture sewerage that historically flowed into Narragansett Bay during rain storms.  During the contractor’s grouting operations at an adjacent structure, the contractor’s drop shaft experienced a large amount of water intrusion (up to 250 gallons per minute).  The contractor spent $1.1 million to pump out the water and seal the concrete walls of its drop shaft.  Pierce Atwood attorneys John Bulman and Katie Kohm handled the defense and the hearings before the panel of three AAA arbitrators.  The arbitrators gave credence to Pierce Atwood’s main arguments, found that the contractor failed to carry its burden of proof, and dismissed the contractor’s claim in its entirety.

Successful Construction Arbitration for Regional Sewer Authority