Favorite Highlights and Session Takeaways from the 2025 ABA Forum on Construction Law Annual Meeting – Austin, TX: “Return of the Contractors: Transforming the Construction Landscape”.

By: Emily Price – Chief Legal Officer, Dynamic Trades, Inc.

I had the pleasure of attending my first in-person ABA Forum on Construction Law Annual Meeting this year in Austin, Texas last month. It did not disappoint! Before diving into my personal session takeaways, I wanted to share a few personal highlights from the trip.

Favorite Session:
Workshop D- “Surviving the Amazing Race: Navigating Subcontractor Relations with Contractors,” stood out to me overall for its real-time, three-way discussion from Owner, GC, and Subcontractor perspectives. It was practical, engaging, and provided great strategies for more effective contract negotiations!

Favorite Quote:
“As an architect, my favorite projects were ones that were never built” - Overheard during the excellent D2/3/5 lunch session on the challenges of terminating a designer in a design-build project – this got a good chuckle from the room!

Favorite BBQ:
Terry Black’s Barbecue was so tasty and worth every minute of the wait!

Cutest sighting in Austin:
Lots of turtles basking in the sun along the Lady Bird Lake trail on a morning run. Too cute!

Now that we’ve got some of the fun stuff out of the way, let’s jump into my personal key take-aways from the plenary sessions at Austin:

Plenary 1: Construction Management at Risk
Some important tips to avoid contingency disputes in the CM setting are: 1) separating owner and CM contingencies to limit fighting over funds, and 2) incorporating shared savings provisions to incentivize careful use of savings by both sides. Good teamwork upfront during contract negotiations (including price escalation discussions) is also key in mitigating GMP and price escalation issues or disputes down the road.

Plenary 2: Surety Secrets
We were reminded in this session to always follow termination procedures exactly as outlined in the bond and contract documents, because deviating from these steps could give the surety a defense to liability due to improper termination. Also, I know it may sound like a no brainer - but be sure to very carefully read your bond for these important procedures that you’ll hopefully never need to follow!

Plenary 3: Delegated Design
One good recommendation to help successfully administer design-build subcontracts is to use a peer review process to identify issues and double check design work (particularly for high-risk scopes like retaining walls). Just don’t assign the peer review to a design subcontractor’s competitor! 

Plenary 4: GC vs. Engineer Disputes
Negligence claims against a design professional can be successful for a contractor (compared to 3^rd party claims). Before pursuing a negligence claim it’s important to address these four questions:

1. Was reliance foreseeable?
2. What is the standard of care?
3. Does the economic loss rule bar purely financial damages?
4. Are there any disclaimers that bar or limit the claim?

Plenary 5: Turning Excuses into Compensation

Know the distinction between damages for delays and damages for disruption: delays extend time; disruptions increase costs without affecting schedule. Also, careful and detailed documentation is key in proving and presenting claims effectively!

Plenary 6: Navigating Ethical Issues when Parties Change Mid-Project:

This engaging final session included fanny-pack giveaways for audience participation and ended with a good list of ethical practices to avoid conflict issues:

1. Proactive conflict checks
2. Engagement letters and closure procedures
3. Thorough vetting of closed files
4. Carefully documenting informed consent
5. Ongoing ethics training

Well, that’s a wrap on Austin from my end! If you didn’t make it to the meeting this time around, hopefully you feel encouraged to consider joining next time!

Meet the Forum's In-House Counsel: AMANDA MESSA

This post was originally published by the D1 Blog, The Dispute Resolver, on May 20, 2025 by Jessica Knox.  Link to original post: https://abaconstructionforumdivision1.blogspot.com/2025/05/meet-forums-in-house-counsel-amanda.html

Company: The Lemoine Company

Email: amanda.messa@1lemoine.com
Website: 1lemoine.com
Law School: LSU Paul M. Hebert Law Center (JD 2005)

States Where Company Operates/Does Business: LEMOINE is a Louisiana based ENR Top-400 Contractor since 2011 with a core practice in commercial construction as well as service lines in disaster services, program management services, infrastructure and fuel logistics.

---

Q: Describe your background and the path you took to becoming in-house counsel.

A: After law school, I was privileged to work under some great litigators and mentors at the law firms of Wiener, Weiss & Madison and later, Phelps Dunbar.  I ultimately spent the majority of my litigation career at Phelps where I focused my practice on construction litigation.  In early 2021, LEMOINE reached out about an opportunity to become their first general counsel that I could not pass up.  The last 4 years have been both rewarding and challenging. I’ve worked to build structure and process around our legal and contracts departments as we have experienced tremendous growth.

Q: How does working in-house compare or differ from firm life?  

A: I think the difference that surprises people the most is I definitely work more than I did when I worked at a law firm. I just don’t have the billables to prove it! Another key difference is I often don’t get the opportunity to collaborate and research issues comprehensively like I used to. The days of creating a research memo are certainly gone. My focus has to be on coming up with the best practical solution to help our project teams keep things moving forward.  

Q: How and when do you use outside counsel?   

A: While I still enjoy a healthy sparing match from time to time, a general rule of thumb for me is when something starts to escalate towards litigation (or I start to get aggressive emails), it’s time to call my litigator friends.  From a capacity standpoint, I can’t be tied up for extended periods of time with hearings or depositions, and I need those valuable extra resources a law firm has to offer.

Q: What are the work/business-related issues that tend to keep you up at night?  

A: It’s the unknowns that keep me up at night – i.e. what new legislation (or currently, executive order) is coming down the pipeline that we need to be aware of and take into consideration as we expand in new geographic areas and service lines.  I rely heavily on firm blogs/updates to keep leadership and our project teams up to speed on new industry issues.

Q: What qualities or characteristics do you look for in outside counsel? 

A: Responsive and practical – Because of the pace at which things move in-house and the number of emails I get each day, I truly value those outside lawyers we work with that timely respond with succinct, practical guidance and updates.  If I’ve gone to outside counsel it’s because I’ve likely already run through the pros and cons and I need a recommendation based on their experience.

Q: What advice would you give to outside counsel about how to meet or even exceed their client's expectations? 

A: Spend some extra time (even if it’s non-billable) getting to know your client’s business – the specific industry they operate within, their leadership structure and the way they approach litigation and business issues. If you’re giving legal advice in a vacuum without that background information, it’s not going to be as effective.

Q: What is the biggest problem that you see when working with outside counsel? 

A: I’m still only a few years removed from the litigation practice so I remember how easy it can be to go down a rabbit hole on a particular legal issue.  But from an in-house perspective, we often have a very limited budget to spend and countless issues that will come up throughout the year.  On occasion, outside counsel will spend a lot of time on an issue that doesn’t necessarily warrant that allocation of resources from our end. I’ve tried to be more intentional about communicating expectations/goals/budgetary restrictions at the outset, but it’s great to proactively address those issues as outside counsel even if in-house counsel doesn’t raise them.  

Q: What are some of your interests or hobbies? 

A: Baseball and books!  13U baseball consumes a LOT of our weekends these days and gets me away from the computer screen.  It’s therapeutic for me to be outside watching our son (Wyatt) and his teammates compete in travel baseball tournaments. Our daughter (Jules) has even started to join in on the fun and is learning to record the plays in game changer. In the last 9 months, I’ve also taken up reading for the first time in over 20+ years. It’s been a great way to keep me on the elliptical machine longer and provides another escape from the constant flow of work emails.

 FORUM ANNUAL MEETING - AUSTIN RECAP

By: Amanda Messa

Cheers to Austin and All the Great Things Ahead for Division 11

We just wrapped up another great annual meeting in Austin where many of us got to experience first-hand all of the things this city has to offer – including a thriving live music scene, vibrant arts and last but certainly not least, amazing craft cocktails.  Here’s a quick recap of some of the fun and memories we made in Austin….

First, we kicked things off with an in-person Division 11 member meeting on Wednesday afternoon where we brainstormed about relevant hot topics and roundtable discussions for our upcoming monthly meetings.  If you don’t regularly attend our monthly meetings, I strongly recommend you get these on your calendar and join us for some interesting discussions on practical issues we all face as in-house counsel. 

On Thursday night, we enjoyed cocktails and conversation with members of Division 11 and the Cokinos Young firm at Standard Proof Whiskey on historic Rainey Street.  We are grateful to Cokinos Young and Shelly and Dave Masters for all of their hospitality.  We had a great turnout and it was exciting to see so many new faces in the room.  

On Friday for our joint division lunch with Divisions 1 and 6, we got to see Division 11 member – Brian Falcon – moderate an interesting panel on Multi-Party Mediations.  The panel featured Jennifer Grippa (Miles Mediation & Arbitration), Hon. Nancy Holtz (Ret.) (JAMS) and Jason M. Rodgers-da Cruz (Siegfried Rivera) and provided lots of great insights that we can use as we approach dispute resolution matters for our companies.      

And finally, I’ll end with a few personal takeaways from Austin:

1. I really like whiskey when it doesn’t taste like whiskey (the Itsy Spritzy Spider at Standard Proof Whiskey may just be my new favorite cocktail)
2. Division 11 members are FULL of fun facts that will need to be explored further at future meetings (e.g. 2 out of the 3 members I had a drink with after our Division 11 social event were Eagle Scouts and one of those former scouts recently purchased a super cool light saber)
3. Our incoming chair (Matt Meaker) has officially empowered me to implement fun fact trivia at our next social event – Note:  there were at least 2 independent witnesses present when he made this commitment.

For those of you who were unable to attend, you were certainly missed but we look forward to seeing all of you in Kentucky in September! 

      

 CTA Madness…. continues

By: Amanda Messa, General Counsel, LEMOINE 

  It’s probably only fitting that as the first round of March Madness was beginning late last week so was another round of CTA Madness – although I think most of us will find the latest update to be a better play by the government. 

   According to the most recent posting on FinCEN’s website, pursuant to an interim final rule released on March 21, 2025, all entities created in the United States — including those previously known as “domestic reporting companies” — and their beneficial owners are now exempt from the requirement to report beneficial ownership information (BOI) to FinCEN.  

  Existing foreign companies that must report their beneficial ownership information have at least an additional 30 days from the date of publication of the interim final rule.  A link to the interim rule can be found on FinCEN’s website:

 https://fincen.gov/sites/default/files/federal_register_notices/2025-03-21/CTAIFR3-21-25-FINAL508.pdf

  FinCEN is accepting comments on the interim final rule and expects to finalize the rule this year. 

Hopefully this update will free up at least a little of your time to catch some of the exciting basketball games that are sure to occur over the next few weeks!

 

 

Corporate Transparency Act Update:

And the CTA Drama Continues…..

By: Amanda Messa

With the February 18, 2025, decision by the U.S. District Court for the Eastern District of Texas in Smith, et al v. U.S. Department of Treasury, et al, 6:24-cv-00336 (E.D. Tex.), beneficial ownership reporting requirements are back in effect, with a new deadline of March 21, 2025 for most companies.  Yes, unfortunately friends, it’s time to dust off your copy of the CTA exemptions to see if a filing is required.  According to a notice posted on FinCEN’s website, FinCEN will assess its options for further modifying deadlines “while prioritizing reporting for those entities that post the most significant national security risks.”  FinCEN has also indicated it intends to initiate a process to revise the BOI reporting rule to reduce the burden for lower-risk entities, including many U.S. small businesses. 

I’m not exactly sure what any of that really means for us but in order to avoid the constant headache of trying to track various pieces of litigation on this topic and the everchanging deadlines, it may be time to just bite the bullet and file those reports if your company does not fall within one of the Act’s exemptions.     

The Implied Duty of Good Faith and Fair Dealing

 

By Joseph Darr 

This article was originally published at Government Construction Law Update on September 15, 2024.  The original post can be found here:  https://www.governmentconstructionlaw.com/

Construction contracts often give one party discretion over certain aspects of the administration of a project. For example, a contract may give the owner the “sole discretion” to approve the use of contingency on a job or whether to give a contractor a time extension for an excusable delay.

Even where an owner has discretion to make specific determinations under the contract, there is generally at least one legal principle that limits how the discretion may be exercised—the implied duty of good faith and fair dealing.

I have written about how a contractor may breach the implied duty / covenant of good faith and fair dealing (click here for that post). This post shows how an example of how a public owner breached the implied duty of good faith and fair dealing by, among other things, improperly assessing liquidated damages.

The Case
In Appeals of ECC International, LLC, a contractor was awarded two projects, which were related to the construction of a military police school for the federal government. The advertisement for the project in question provided that the project would have a 365-day period of performance. The contractors bidding on the project did not know, however, that there were internal communications among government / owner representatives that the project could not be completed in 365 days. In fact, one owner representative wrote that the 365-day period of performance was “NOT POSSIBLE.” Instead, it was thought that the period of performance should be at least 550-600 days.

During construction of the project, the contractor encountered numerous issues with the project, which caused the project to be untimely completed. The owner failed to adjust the completion date for excusable and compensable delays, and the owner assessed liquidated damages for late completion of the project. The owner also refused to provide the contractor with additional compensation that the contractor requested.

Appeal to the Armed Services Board of Contract Appeals
The contractor appealed the owner’s / government’s deemed denial of the contractor’s various claims. The appeal was with the Armed Services Board of Contract Appeals. The contractor argued, among other things, that the government breached the duty of good faith and fair dealing.

The ASBCA outlined the following about the duty of good faith and fair dealing:

Every contract imposes on each party a duty of good faith and fair dealing in its performance and enforcement. The covenant of good faith and fair dealing imposes obligations on both contracting parties that include the duty not to interfere with the other party’s performance and not to act so as to destroy the reasonable expectations of the other party regarding the fruits of the contract. While the implied duty of good faith and fair dealing cannot expand a party’s contractual duties beyond those in the express contract or create duties inconsistent with the contract provisions, it prevents a party’s acts or omissions that, though not proscribed by the contract expressly, are inconsistent with the contractor’s purpose and deprive the other party of the contemplated value. The duty to cooperate is an aspect of the implied duty of good faith and fair dealing.

(Internal quotation marks and citations omitted).

The ASBCA noted that the government imposed a 365-day period of performance “despite unanimous contemporaneous internal opinion that the period of performance was far too short and should more appropriately have been at least 550-600 days.” In other words, the government advertised the project with a period of performance of 365 days, even though the government knew that 365 days was not likely achievable.

On the other hand, the ASBCA found that the contractor reasonably believed 365 days would be achievable because the government had communicated that it was committed to achieving accelerated construction and the contractor had successfully completed other accelerated projects with the government. There was also a document provided to the contractor that expressed the “primary objective is the construction schedule,” and that quality and cost were secondary objectives.

The Government Fell Short in Three Ways
The ASBCA focused on three shortcomings on the part of the government. First, the government could have approved “designs that departed from the conceptual drawings and specifications in ways that were not only compatible with the most recent guidance, but were also better suited to achieve completion in 365 days.” And the government “chose not to do so.”

Second, the government failed to help the contractor obtain unfettered access to the job site that would have allowed the contractor to work double shifts and overtime needed to achieve the schedule. As a result, the contractor could only work 7.5 hours per day instead of the 20 days per day it intended to work.

Finally, the ASBCA noted that the government improperly withheld funds, issued unsatisfactory performance ratings, and assessed liquidated damages against the contractor. Such actions were improper because, among other reasons, the government refused to grant relief to the contractor for government-caused and excusable delays.

The ASBCA concluded that the government breached the covenant of good faith and fair dealing because the government advertised its intent to implement an accelerated construction and relaxed design standards and then administered the contract inconsistent with that advertised intent. The government’s failure to cooperate with the contractor by implementing the relaxed design standards and giving the contractor the needed access to job site deprived the contractor of the contemplated value of the contract. Thus, the ASBCA held that the contractor was entitled to its damages flowing from the breach of the implied covenant of good faith and fair dealing.

Bottom Line
Even if an owner has sole discretion as to how to administer a contract, there are limits on that discretion. In particular, an owner should not unreasonably exercise any discretion it has under the contract. Otherwise, an owner may breach the implied covenant of good faith and fair dealing and end up owing the contractor additional compensation. 

Interested in construction claims and want to see more posts like this one? Follow Joseph Darr on LinkedIn.

 

Corporate Transparency Act Update: It’s Not April Fools Yet But It Kinda Feels Like It….

By: Amanda Messa, General Counsel, LEMOINE

I’m starting to think the courts are either (a) secretly conspiring to keep in-house counsel guessing as to whether they need to carve-out time to focus on Corporate Transparency Act (CTA) filings or (b) trying to increase Division 11’s blog activity on The Connector.  Either way, here’s a quick update on the latest in the CTA legal saga – the gift that just keeps on giving.  On January 23, 2025, in the Texas Top Cop Shop case, the United States Supreme Court granted the Government’s request to stay the nationwide injunction on the enforcement of the CTA issued by the United States District Court for the Eastern District of Texas, Sherman division.  On its face, this ruling appeared to allow enforcement of the CTA by FinCEN (Financial Crimes Enforcement Network).  The ruling did not go to the underlying merits of the dispute surrounding the CTA but rather was procedural in nature.  The substantive issues in that case are scheduled to be taken up by the Fifth Circuit Court of Appeals in the coming months. 

Late last week, FinCEN posted the following update on its website clarifying that companies are not currently required to file beneficial ownership information because of a separate nationwide order issued in Texas:

“As a separate nationwide order issued by a different federal judge in Texas (Smith v. U.S. Department of the Treasury) still remains in place, reporting companies are not currently required to file beneficial ownership information with FinCEN despite the Supreme Court’s action in Texas Top Cop Shop. Reporting companies also are not subject to liability if they fail to file this information while the Smith order remains in force. However, reporting companies may continue to voluntarily submit beneficial ownership information reports.”

The bottom line is there continues to substantial uncertainty surrounding enforcement of the CTA with multiple ongoing legal battles and now a new presidential administration.  If you haven’t already allocated time to dig in on applicable exemptions and filing requirements, it looks like it’s probably time to pour yourself a large cup of coffee and engage in some light reading on the subject.