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Construction

Building the foundation for construction law.

The construction industry needs counselors and advocates who understand construction law — attorneys who can help minimize risks, protect legal rights and preserve the bottom line. Developers, owners, contractors, and subcontractors count on our attorneys to solve the most complex legal issues. We’ve built enduring relationships with dozens of construction firms and professionals across the region. Our clients range from small entrepreneurial companies, to developers and owners, to several of the larger contractors and specialty contractors in the country. Whether representing developers, contractors, suppliers or owners, we provide advice and solutions tailored to meet the express needs and objectives of each client.

Practice Area Contact

  • Terrence L. Brookie Profile Image
    Terrence L. Brookie

    Practice Group Leader

    Indianapolis, IN

Core Capabilities

Contract Negotiation, Preparation & Review

A successful project starts with a good contract, one that reflects the needs of the particular project and fairly and reasonably allocates risks and rewards among the parties. We regularly assist clients with their contracts, whether drafting and negotiating unique “manuscript” contracts for complicated projects or providing a quick consultation on insurance, indemnity, no-damages-for-delay, pay-if-paid, and other key risk-shifting provisions. Our contract services include:

  • Modifications to AIA, AGC, Consensus DOCS, DBIA, and other standard industry form contacts.
  • Licensed subscriber of AIA electronic documents.
  • Negotiation and preparation of manuscript contacts for complicated or unique projects.
  • Preparation of “master” contracts and subcontracts for use in multiple projects.
  • Preparation of purchase order forms.
  • Advice on project delivery methods and contract types, including lump sum, cost-plus fee, guaranteed maximum price, DB, DBB, DBOM, DBFOM, CM at-risk, CM agency, EPC, EPCM and multi-prime procurement.

Risk Management & Project Counseling

Our goal is to help clients minimize business risks, avoid claims, and preserve their bottom line. To accomplish this goal, we regularly work with construction industry clients at the “front end” before problems develop. Our risk management services include:

  • Assistance in bidding, preparation of RFPs and bid protests.
  • Contract negotiation, preparation, and review.
  • Insurance and surety bond review and counseling.
  • In-house audits and staff training sessions on best practices for claims avoidance, project documentation, key contract issues, OSHA, HR policies and procedures, immigration, risk management and other legal issues faced by contractors.
  • Seminars on risk management issues for AGC, ABC, and other leading construction trade associations.

General Dispute Resolution

In today’s challenging construction market, occasional disputes are inevitable. When disputes occur, our clients need advocates who can resolve them quickly and effectively. Our services include:

  • Service as neutrals in mediations and arbitrations.
  • Representation of clients in mediation, arbitration, and other alternative dispute resolution proceedings.
  • Litigation of construction disputes in federal and state courts, courts of claims and other specialty courts and administrative tribunals throughout the nation.

Design Defect & Unforeseen Conditions Claims

Resolving construction defect, design defect, and unforeseen/differing site conditions claims often requires knowledge of basic construction means and methods and design principles. Our group includes attorneys with degrees in civil engineering and practical experience in construction and design. In addition, we have close working relationships with construction and design consulting firms that can assist in prosecuting or defending these claims. We have experience in multiple types of such disputes:

  • Prosecuting changed conditions claims on bridge construction projects due to inaccurate geotechnical report and representations.
  • Representation of a project owner and general contractor in claims relating to the collapse of an adjacent building on a school construction project.
  • Representation of developers, general contractors, and site development contractors on differing site conditions claims involving rock, subsurface obstructions, and defective grading plans.
  • Building envelope, water intrusion, and mold claims.
  • Design errors and omissions claims.
  • Representation of construction managers, general contractors, and specialty contractors in claims relating to defective design of HVAC, plumbing, and electrical systems.
  • Representations of project owners and contractors in differing site conditions claims in both heavy highway, heavy civil, and building projects.

Public Project Procurement & Bid Disputes

Procurement and bidding on public projects is a complex process with many potential pitfalls. Our attorneys have extensive experience in all aspects of the procurement process, from assisting in the bidding process to representing clients in bid disputes. Our services include:

  • Counseling on public bidding requirements and process.
  • Advising clients on bid review and award.
  • Prosecuting bid contests and defense of incumbent.

Schedule Delay, Disruption & Acceleration Claims

With today’s complicated projects and tight schedules, disputes often arise regarding schedule delays and disruptions, acceleration demands, and liquidated damages. We regularly represent clients in schedule-related claims and disputes, with extensive experience in the following areas:

  • Delay, compression and acceleration claims.
  • Disruption and productivity impact claims.
  • Sequencing, re-sequencing and stacking of work claims.
  • Building and site access restriction claims.
  • Owner interference claims.
  • Home office overhead and Eichleay claims.
  • Liquidated damages claims.

Contractor Education/Resources

We regularly present best practices and training seminars for construction clients and trade associations on topics ranging from risk management, claims avoidance and project documentation to key contract issues, project delivery methods and how to get paid. Each year hundreds of contractors attend our Contractor’s Law Series of seminars co-sponsored by leading construction trade associations and we regularly provide tailored, in-house seminars to our clients on pressing issues in the industry.

Well-Practiced

Experience Highlights

Project Counseling
  • Drafting of template construction contracts for use in continent-wide (North America) midstream construction campaign valued at more than $18 billion USD.
  • Drafting of multiple contract forms with distinct delivery vehicles (EPC, D/B, MSA, etc.) for onshore and offshore infrastructure for global E&P client. Complex suite of forms for use across multiple jurisdictions in capital campaign of more than $3 billion USD.
  • Creation of bid and RFP compliance procedures and policies for national and international contractors and owners, including supply-chain management, bidding, and anti-kickback and anti-fraud policies for multiple clients in both prospective and reactive postures.
  • Project management and contract administration training for client contract execution teams on midstream and commercial construction projects. Detailed full-day trainings for contract teams on terms of specific contracts and their implementation, as well as general construction and claim avoidance and prevention techniques.
  • Drafting and negotiation of construction contracts of all types, including pipeline and oil and gas projects (onshore and offshore), U.S. federal agency projects, distribution centers, and commercial and industrial construction projects.
Construction – Energy and Petrochemical
  • Defense and prosecution of lien, payment and performance claims arising from construction of interstate transmission lines for multiple clients. Total at issue in all such matters to date, approximately $400 million USD.
  • Defending against EPC contractor claims and prosecuting claims against designer related to expansion of midstream facilities. Very complex matters dealing with design errors and omissions, local regulatory requirements, and lost profits due to delayed commissioning. Total at issue, $75 million USD.
  • Prosecution of claims and liens on 5-train LNG facility in the gulf coast.
  • Prosecution and defense of claims related to oil refinery new construction and maintenance construction.
  • Prosecution of claims and close out of EPC contracts on utility-scale solar facilities.
  • Assistance in project execution and lien and payment disputes for wind energy projects.
  • Defense and prosecution of claims related to utility facilities new construction and maintenance construction.
  • Defense and prosecution of design error and misrepresentation claims on utilities projects.
  • Prosecution and defense of claims related to new construction and maintenance construction of power plant.
Construction – General
  • Managing general contractor defaults, terminations and handling close-out and completion of related projects.
  • Lien and breach of contract matters arising from demolition and implosion projects.
  • Assistance in union negotiations and disputes and development of union and non-union entities.
  • Contract and bid package drafting for renovation of state-wide toll road system.
  • Assistance in preparation of bid responses and contracts for municipal, state and federal IT systems.
Construction – Litigation
  • Prosecuting changed conditions claims on bridge construction projects due to inaccurate geotechnical report and representations.
  • Representation of a project owner and general contractor in claims relating to the collapse of an adjacent building on a school construction project.
  • Representation of developers, general contractors, and site development contractors on differing site conditions claims involving rock, subsurface obstructions, and defective grading plans.
  • Defense of design-builder in industrial explosion matter.
  • Defense of multi-citation, including repeat and willful, OSHA matters.
  • Prosecution and defense of bid protests for all trades.

Industry Connections

To stay current on issues affecting our construction clients, we are active members of local, regional and national construction trade and bar associations including:

  • Allied Construction Industries (AGC of Cincinnati)
  • American Bar Association (Forum on Construction Industry; Construction Litigation Subsection; Fidelity and Surety Law Committee)
  • American College of Construction Lawyers (Terry Brookie, Fellow)
  • Asphalt Paving Association of Indiana
  • Associated General Contractors (Ohio, Indiana, Tennessee)
  • Association of Insurance Professionals
  • Builders Exchange of Central Ohio
  • Construction Financial Managers Association (Indiana, Kentucky)
  • Design Build Institute of America (Indiana)
  • Indiana Construction Association (AGC of Indiana)
  • International Association of Defense Counsel
  • Kentucky Association of Highway Contractors
  • Surety Association of Indiana
  • Surety Association of Ohio

Recognition & Rankings

As a result of our experience, diligence, and success, we have been recognized by several organizations for our outstanding construction law services, including Chambers USA®, The Best Lawyers in America©, Super Lawyers®, Martindale-Hubbell, Legal 500 and other independent peer reviews.

Ranked among Top Law Firms in The Best Lawyers in America©

Frost Brown Todd has continued to be ranked among the top law firms in the country according to Best Lawyers. The firm now holds National Tier rankings in 14 practice areas, including National Tier 1, Litigation – Construction; National Tier 2, Construction Law; and 154 Metropolitan Tier rankings in nine cities across seven states including Charleston, WV; Cincinnati and Columbus, OH; Dallas/Fort Worth, TX; Indianapolis, IN; Louisville and Lexington, KY; Nashville, TN; and Pittsburgh, PA.

Ranked in Top 50 U.S. Construction Law Firms

Construction Executive included FBT as one of the top 50 U.S. construction law firms in its inaugural ranking. Firms were chosen based on the practice’s revenues, number of attorneys in construction, percentage of total firm revenues coming from the practice, number of states firm is licensed to practice and when the construction practice was established.

Named “Best Environmental & Construction Law Practice”

BUILD magazine named FBT the “Best Environmental & Construction Law Practice” in the American East region as part of its annual Construction and Engineering Awards.

Supporting Evidence

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