Pierce Atwood’s construction lawyers help clients in heavy civil construction and the building industries achieve successful outcomes on some of the largest and most complex private, institutional, and public projects throughout New England and nationwide.

Pierce Atwood construction lawyers provide a depth of industry-specific knowledge gained through decades of representing developers, private and public owners, energy project developers, construction managers, general contractors, subcontractors, suppliers, design professionals, and sureties through all phases of their projects—from pre-construction planning and the development of an appropriate project delivery system through final payment and close-out.

As construction lawyers, we know that our role is not merely to serve as zealous advocates in times of dispute, but to be proactive business and legal advisors, guiding clients through the complicated legal and regulatory environments in which they must operate; and working together to successfully deliver the project.

Pierce Atwood's construction law attorneys work to anticipate and prevent disputes and claims that can threaten a project’s success and our clients’ relationships with other project stakeholders. When disputes do arise, we draw upon the wealth of mediation and other alternative dispute resolution methods available to best serve our clients’ interests in delivering projects safely, on time, and on budget.

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 construction attorneys stay up-to-the-minute on issues impacting the industry by serving in leadership positions in construction bar and trade groups such as the American College of Construction Lawyers, ABA Forum on Construction Law, Associated General Contractors (AGC), Associated Builders and Contractors (ABC), Construction Industries of Massachusetts (CIM), and the American Arbitration Association (AAA).  In addition, our construction lawyers testify before state legislatures on matters impacting the industry, and regularly publish and speak on today’s critical, cutting-edge issues.  The construction attorneys cover many of these issues on their construction blog, Solid Foundation

Pierce Atwood's construction lawyers bring the resources of a highly respected, interdisciplinary firm accustomed to addressing significant contemporary issues in finance, insurance, real estate law, environmental and land use regulation, labor and employment, and other areas of expertise critical to a project’s success.

Areas of Expertise

From the earliest stages of project development, we give advice and guidance to commercial developers, colleges and universities, public authorities, and other owners regarding modern project delivery systems, including such advanced concepts as integrated product delivery, and other innovative solutions that best serve the project goals. As part of this process, we help to formulate and define the legal relationships and responsibilities between stakeholders to best promote project efficiencies and prevent costly changes and disputes as the construction proceeds. These services include:

  • Advice and counsel regarding how to structure the delivery of capital projects such as fixed-price Design-Bid-Build, Design Build, Engineering Procurement and Construction (EPC), Construction Management at Risk, Multi-Prime, and Integrated Project Delivery (IPD).
  • Structure and clarify “front end bidding documents” to achieve better pricing and better results.
  • Advice regarding the selection of an Owner’s Project Manager (OPM), defining the role of the OPM for any given project, and negotiating an appropriate contract with the OPM.
  • Advice regarding available forms of design and construction contract including the use of industry forms such as the AIA Contract Documents and ConsensusDocs or the preparation of manuscripted agreements.
Representative Experience

Pierce Atwood has been working with Brown University to develop construction contracts for a number of capital projects using the innovative Integrated Project Delivery (IPD) approach to project delivery.  Among the projects Brown has successfully completed using IPD is the new, $90 million School of Engineering building and renovations project.  Brown is currently delivering several projects using IPD, including the much anticipated Performing Arts Center project. Brown University has taken a leading position in the New England region in recognizing the potential benefits of, and implementing, this new and exciting approach to project delivery.

Brown University Embraces Integrated Project Delivery Approach for Capital Projects

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’s construction lawyers work closely with our colleagues in our Environmental, Real Estate, and Land Use practices to assist owners, developers, and contractors with a variety of environmental issues that can arise on a construction project, including:

  • Property Acquisition and Environmental Planning: We assist with initial project planning beginning with initial identification of the issues and formulation of a permitting team and strategy, through agency negotiations and public administrative hearings, and, if necessary, in administrative and judicial appeals. In addition, our environmental attorneys have developed a program to conduct environmental audits that will help clients develop compliant environmental practices and procedures.
  • Permitting – Federal, State & Local: Our firm regularly represents businesses with air and wastewater discharge permitting. In addition, we are experienced with permitting of projects under state and federal air, water, natural resource, wetland, land use, and hazardous waste statutes.
  • Environmental Litigation & Administrative Appeals: Our owner and construction clients face complicated regulatory oversight involving permits and other environmental issues. Our environmental attorneys have the experience to assist clients through the permitting and appeal process to improve the odds of success in obtaining the permit. In the event a hazardous waste or other environmental enforcement action is brought against our clients, we have the team in place to represent and defend our clients in those proceedings.
  • Project Development and Zoning: Our real estate and land use attorneys assist clients with project development and compliance with zoning codes, and appear before local planning boards to address such issues on behalf of our clients.

Based in coastal cities throughout New England, our construction industry clients that perform work involving navigable waters face the jurisdiction and law of Admiralty & Maritime. Pierce Atwood’s Admiralty & Maritime attorneys help our clients navigate the complex patchwork of federal, state and local laws governing activities along the shore and at the sea.

Click here to learn more about our Admiralty & Maritime practice.

Our construction group includes attorneys who also serve in the firm’s Energy Infrastructure practice group. Our construction attorneys can help draft and negotiate Engineering, Procurement, and Construction (EPC) contracts for energy infrastructure projects, assist with risk management and dispute avoidance during project performance, and represent our energy industry clients in disputes. 

Pierce Atwood is one of a select few firms that offers a full suite of services to the energy infrastructure industry including services related to project development, finance, regulatory, and mergers & acquisitions.

Our energy attorneys are at the cutting edge of the growing and increasingly complex industry of renewable energy technologies and storage, including assisting our clients to structure net metering, SMART program, value-based distributed energy, community solar, synthetic power purchases, storage solutions, solar tax credits, and other distributed energy agreements.

Click here to learn more about our Energy Infrastructure Project Development & Finance practice.

Federal, state, and municipal public projects have their own unique challenges, and we advise owners and bidders regarding all aspects of such projects. Whether the questions concern qualifications for public bidding, the bid package or process, bid challenges, project labor agreements, regulatory compliance, or challenges to state or local laws and ordinances, we have the knowledge and experience to guide our clients efficiently through these complex and often daunting administrative and legal processes.

Construction companies, and their officers, may encounter government investigations and enforcement actions brought by federal, state, and local agencies. Potential proceedings include assertions and investigations of false claims, bribery, accounting fraud, corruption, antitrust and competition, money laundering, disadvantaged owned business enterprise (DBE) fraud, intellectual property crime, and other similar issues. Additional compliance risks are present for our clients who perform work internationally.

Our construction lawyers work with the firm’s team of attorneys who are experienced at protecting our clients’ interests during every phase of corporate compliance, from designing and updating compliance systems, to risk assessments, to internal investigations, through resolution, litigation, and follow-on consequences.

Click here to learn more about our Government Investigations & Compliance practice.

At the procurement stage, we do more than just draft and negotiate contracts for owners, construction managers, general contractors, and their subs. We advise on procedures for vetting documents, structures to minimize uncertainties and future disputes, means to effectively manage risk, and other aspects of the transaction that require the specialized knowledge of professionals versed in both the building industry and the law.

Our construction attorneys regularly draft and negotiate the following contracts on behalf of our clients:

  • Owner and Design Professional Contracts such as the AIA B101-2017 Owner and Architect Agreement as well as design professional standard form contracts.
  • Owner and Contractor construction contracts including fixed price design-bid-build contracts, construction manager at risk contracts, construction management as an advisor contracts, design build contracts, cost plus contracts, and cost plus contracts with a guaranteed maximum price (GMP). We regularly negotiate AIA Owner/Contractor Contract Documents including the AIA A101-2017 (Stipulated Sum), AIA A102-2017 (GMP), AIA A133-2009 (CM with GMP), and AIA A201 (General Conditions). For our clients who consistently enter into construction contracts, such as public and quasi-public entities, developers, schools and universities, we prepare customized forms of contracts that suite our client’s internal practices, procedures, and preferences.
  • Contractor and subcontractor construction contracts. We work with our general contractor clients to develop a standard form of subcontract, purchase order, and other contract documents with lower tier contractors. We assist our subcontractor and supplier clients to negotiate their contracts. We work with mechanical, plumbing, steel fabrication, specialty coating, and other specialty subcontractors and suppliers on their contract forms and processes.
  • Collaborative construction contracts such as teaming agreements, joint venture agreements, design build, and integrated project delivery agreements.

In preparing and negotiating these construction contracts, we counsel our clients to consider provisions to manage and plan for risk including appropriate the following clauses: indemnity, liability insurance, property and builder’s risk insurance, additional insured requirements, waiver of consequential damages, liquidated damages, no damages for delay, pay if paid, pay when paid, payment bond, performance bond, joint check, audit, cost of work, and other similar provisions. We employ a specialized approach for each client on each project to ensure a fair and reasonable methods are in place to reduce the anticipated risks and that predictable process is established to avoid disputes and additional delay resulting from unanticipated risks.

Our construction lawyers work collaboratively with our client’s risk managers, in-house counsel, and insurance agents to ensure the proper insurance is in place for the project. We provide guidance on insurance requirements in owner contracts with design professionals and contractors including the following forms of insurance: commercial general liability (CGL) insurance, excess and umbrella CGL insurance, additional insured endorsements, worker’s compensation, pollution insurance, professional liability insurance, owner controlled insurance programs (OCIPs), contractor controlled insurance programs (CCIPs), cyber insurance, and builder’s risk insurance. We alert our clients to the limitations of the insurance policies and available endorsements that may provide more expansive coverage.

We counsel our owner and general contractor clients on whether to require performance and payment bonds with their lower tier contractors. We also provide guidance regarding subguard default insurance (SDI) and other mechanisms to plan for subcontractor default.

During the project, we provide real-time advice and guidance on issues as they arise, whether they concern unforeseen conditions, project changes, contractual relationships between project stakeholders, labor and employment issues, or actions by government regulators. We offer training for client personnel on how to manage the unexpected and how to respond so as to avoid, resolve, or minimize potential claims before they become costly or threaten project schedules.

We represent our construction clients on a wide range of labor law issues. Our attorneys have experience with wage classification enforcement actions, project labor agreements (both drafting and contesting), ERISA litigation, and other union-related proceedings for our unionized clients.

Pierce Atwood’s employment, labor, and ERISA attorneys regularly assist companies in the construction industry with these issues including matters involving employment discrimination, executive compensation and benefits, FLSA and State Wage/Hour claims, HR compliance, workplace investigations, and traditional labor advising.

Click here to learn more about our Employment and Employee Benefits & Executive Compensation practices.

Even after delivery, we continue to assist clients – such as owners, construction managers, trade contractors, suppliers, sureties, architects, or engineers – regarding the issues and claims that may arise with respect to project completion.

On public projects, we assist contractors with the enforcement of Miller Act and Little Miller Act disputes, assertion of payment bond claims, making demands for direct payment, and other regulatory processes available. 

With respect to private works projects, our attorneys advise clients regarding the mechanic’s lien, prompt payment, anti-indemnity, retainage limitation, licensing, and other statutes and regulations unique to the construction industry.  We guide our clients through the project close-out phase on issues such as auditing rights and final accounting process for guaranteed maximum price (GMP) contracts, warranty claims, defective work, mechanic’s lien waivers, and release of retainage.

Our leadership in alternative dispute resolution is such that we regularly serve as mediators, arbitrators, referees, and special masters for large industrial, commercial, and public project construction disputes throughout the United States.

Increasingly, clients are concerned about the time and expense needed to bring a case to final resolution through trial and appeal. More and more, parties turn to alternative dispute resolution as a way to resolve their cases more quickly and efficiently. Pierce Atwood offers an unsurpassed level of expertise and service in arbitration, mediation, and other forms of alternative dispute resolution.

Click here for more information on our Arbitration & Mediation practice. 

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

John Bulman has been appointed sole arbitrator in an AAA large complex case dispute relating to the engineering, design, procurement and construction of a power plant in the Eastern U.S.

AAA Large Complex Dispute Concerning Power Plant EPC Issues

John Bulman is serving as an arbitrator in a matter relating to the construction of a natural gas-fueled combined-cycle generating facility in New England.

Arbitration Regarding Construction of Generating Facility

John Bulman has been appointed the sole Arbitrator in a large complex construction dispute involving a multi-unit residential condominium development project located in suburban Boston.

Arbitrator in Condominium Project Construction Dispute

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

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

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

John Bulman mediated a dispute over an interstate highway construction project between a state department of transportation (DOT) and a regional heavy contractor. 

Mediation of Highway Construction Project Dispute

John Bulman mediated a P3 (public-private partnership) dispute relating to a transportation infrastructure project in the Western U.S.

P3 Dispute Concerning Transportation Infrastructure Project

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

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

In a large public works project, we represented a joint venture road/bridge builder in mediation with a state DOT (and Federal Highway) in which DOT threatened to impose millions of dollars of liquidated damages. The matter was successfully settled over several days of mediation.

Successful Mediation for Large Public Works Project

Should the need for litigation arise, we are tenacious litigators with extensive experience preparing, prosecuting, and defending complex construction claims. Construction cases are often factually-intensive and involve highly-technical issues. We understand these challenges and work to ensure that cost-effective, winning strategies are implemented for our clients. Our attorneys are licensed and experienced in both state and federal courts throughout New England.

Representative Experience

We defended a general contractor’s surety in a multimillion dollar case involving failed concrete panels in a water treatment plant in Vermont. The matter was resolved without trial.

Surety Success

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

Defended a residential owner against a claim brought by the general contractor following a renovation project of a historic, high-end residence.  Represented the owner though a multi-week arbitration involving over 200 change order requests and an audit of the costs incurred for the guaranteed maximum price (GMP) contract.

AAA Large Complex Arbitration Involving High-End, Historic Residential Property

John Bulman has been appointed sole arbitrator in an AAA large complex case dispute relating to the engineering, design, procurement and construction of a power plant in the Eastern U.S.

AAA Large Complex Dispute Concerning Power Plant EPC Issues

John Bulman is serving as an arbitrator in a matter relating to the construction of a natural gas-fueled combined-cycle generating facility in New England.

Arbitration Regarding Construction of Generating Facility

John Bulman has been appointed the sole Arbitrator in a large complex construction dispute involving a multi-unit residential condominium development project located in suburban Boston.

Arbitrator in Condominium Project Construction Dispute

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

Pierce Atwood has been working with Brown University to develop construction contracts for a number of capital projects using the innovative Integrated Project Delivery (IPD) approach to project delivery.  Among the projects Brown has successfully completed using IPD is the new, $90 million School of Engineering building and renovations project.  Brown is currently delivering several projects using IPD, including the much anticipated Performing Arts Center project. Brown University has taken a leading position in the New England region in recognizing the potential benefits of, and implementing, this new and exciting approach to project delivery.

Brown University Embraces Integrated Project Delivery Approach for Capital Projects

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

Pierce Atwood attorneys represent developers of hotel projects.  Our construction attorneys drafted and negotiated contracts with the architects using the AIA B101-2017 forms, with contractors using the AIA A101-2017 / A201-2017 forms, and with construction managers using AIA A133-2009 forms.  

Construction Contract Documents for Hotel Projects

Negotiated a construction management contract on behalf of an owner of an animal hospital in Rhode Island.  Used the AIA A133-2009 contract document and customized the contract to provide that the construction manager was performing design build services for the mechanical, electrical, and plumbing (MEP) scope of work.  Post-completion, assisted the owner in remedial work required due to performance issues with the mechanical systems.

Construction Management Contract for Animal Hospital

We negotiated the contract between our client Brown University and Ecosystem, the contractor, for a Thermal Efficiency Project that Brown is undertaking. The plan involves converting the university’s existing high-temperature hot water system to modern, highly efficient, lower-temperature hot water.

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Contract Negotiation for Brown University Thermal Efficiency Project

Represented the owner of a new, state-of-the-art athletic facility in Massachusetts in the negotiation of a design-build contract.  Used the AIA A141-2014 Design Build Contract form as the basis of the agreement.  Assisted the client in the negotiation and execution of the Design-Build Amendment for the Project.

Design-Build Contract for Athletic Facility

Represented a developer in Massachusetts who entered into a contract with a city to construct public and private improvements as part of a downtown revitalization project.  Utilized the ConsensusDocs 410 contract form for the contract between the developer and the city.  Used a multi-GMP Amendment process for the varying phases of the public and private work.  Drafted and negotiated the construction management agreement with the contractor using ConsensusDocs 500 form.  The project involved the use of modular construction building for the apartment complex.

Design-Build Contract with City for Public & Private Improvements

Pierce Atwood successfully obtained the discharge of a mechanic’s lien asserted by a contractor on the basis that the retainage sought in the mechanic’s lien was performed beyond the statutory limitation period. 

Dismissal of Mechanic’s Lien in Rhode Island