Contractors doing work on publicly-owned projects in Pennsylvania may find it more difficult to recover statutory penalties and attorneys’ fees if the owner withholds funds in bad faith. Pennsylvania’s Procurement Code, which governs bidding on public projects and payment to prime contractors and subcontractors, is intended to “level the playing field” between government and contractor. Similar, but not identical to the private prompt payment act, the statute provides for the award to the contractor of interest, a penalty in the amount of 1% of the unpaid balance per month, and attorneys’ fees if the public entity acts in bad faith by refusing payment that is due to the contractor. Pennsylvania courts previously interpreted this statute to mean that if a jury determined that the public entity acted in bad faith, then an award of penalties and attorneys’ fees was required.
Over the past year, many states experienced budget crises that threaten public works spending and, in some cases, caused entire project shut downs. In Pennsylvania, a stalemate over the budget for Fiscal Year 2016-2017 lasted almost nine months, causing companies and non-profit grant recipients who had contracts with the Commonwealth to suspend their services or temporarily close. In New Jersey, Governor Christie and the legislature deadlocked over taxes, including an increase to the gas tax that would fund the Transportation Trust Fund (“TTF”). As a result, Governor Christie issued Executive Order No. 20, which shut down all construction projects funded by the TTF that were not “absolutely essential for the protection of the health, safety, and welfare” of New Jersey citizens. The Executive Order was issued on June 30, 2016, a list of projects subject to shut down was published on July 6, 2016 and the projects were shut down by July 8, 2016.
Indeed, funding shortages and quick project shutdowns can have serious effects on those companies performing public construction work. In the event a public project you are working on encounters a funding shortage or is suspended or shutdown due to budgetary concerns, consider the following:
In the recent case of Township of Salem v. Miller Penn Development, LLC, the Pennsylvania Commonwealth Court invoked the often overlooked doctrine of nullum tempus occurrit regi. Read literally as “time does not run against the king,” as a general rule, nullum tempus allows the Pennsylvania state government or agencies to sue government contractors at any time, regardless of a statute of limitations defense. Nullum tempus also applies to claims brought by local governments, such as school districts, municipalities and counties, but only if the local government 1) brings its claims in its governmental capacity and 2) seeks to enforce an obligation imposed by law, as distinct from one arising out of a voluntary agreement.
Almost any construction project carries the potential for disputes, which all too often lead to litigation and associated costs. As litigation costs increase, they eat into potential recovery or limit defense strategies. Finding ways to lower litigation expenses helps eliminate cost as a barrier to a favorable outcome. One area ripe for such measures is e-discovery—the process in any litigation where, as court rules require, the parties collect and exchange electronically stored documents and data. That process necessarily is affected by the way those documents and files are stored and managed. Even before litigation begins, construction companies can take simple steps to reduce their e-discovery costs.
The developers of the Wharf, an ongoing waterfront development at 1100 Maine Avenue SW in Washington, D.C., recently announced that they have secured $113 million of debt financing for the project. PN Hoffman and Madison Marquette, the project’s developers, will use the financing to pay for the construction of two new hotels, the 175-room Canopy by Hilton and the 237-key Hyatt House hotel, scheduled to open later next year. SunTrust Bank and M&T Bank will provide the financing.
The announcement is the latest step in an ambitious plan to transform approximately 25 acres along a mile of waterfront of the nation’s capital into a desirable, livable destination complete with hotels, condos, rental housing, retail, and restaurants.
It’s not every day that a decision by the United States Supreme Court has the potential to impact the construction industry. But the Court handed down a decision last month that could hinder the pace of power plant construction around the country. In Hughes v. Talen Energy Marketing, LLC, the Court unanimously struck down a Maryland regulatory program that provided subsidies to incentivize new power plant construction in the state. According to the Court, the program intruded on the federal government’s authority to regulate the interstate wholesale market for electricity. Because several other states have similar programs, more cases challenging state power plant construction incentives could be on the horizon.
In a recent U.S. Supreme Court case about pregnancy discrimination, Justice Breyer asked: “Why, when the employer accommodated so many, could it not accommodate pregnant women as well?” As an employer, that is a question you should now be asking when preparing, reviewing, or updating your company’s accommodation policies.
Many employers have policies and practices to ensure accommodation of disabled workers or those with temporary injuries or disabilities. However, employers may be overlooking their legal obligations to accommodate another group of workers: pregnant women who have pregnancy-related work limitations.
In Young v. United Parcel Service, the Court addressed whether UPS’s treatment of a pregnant employee constituted pregnancy discrimination. Its decision effectively broadens the range of accommodations employers must provide to a pregnant employee.
Peggy Young was a UPS delivery driver. When Young became pregnant, her medical providers instructed her not to lift more than 20 pounds. As a result, Young was unable to fulfill UPS’s standard 70-pound lifting requirement. Young was not assigned to light duty or an alternate position, but was required to take a leave of absence while the lifting restriction remained in place. She was forced to take unpaid leave and lost her medical coverage during that time. Continue Reading
Philadelphia’s 2011 “Ban the Box” law, which restricts an employer’s ability to inquire into a job applicant’s criminal history at the initial stages of the application process, is “old news” – but the recent changes that went into effect on March 14, 2016 are anything but. Our firm will be getting into the details of this recent development at its 8th Annual Labor and Employment Seminar (April 27, May 4, and May 12).
In short, every Philadelphia employer needs to make the necessary changes to its job application procedures to comply with the broader requirements of the law that former Mayor Michael Nutter signed into law before leaving office in December 2015.
The 2011 Version
As enacted in 2011, Philadelphia employers with 10 or more employees could not include the “box” on a job application asking about criminal records. Employers were not permitted to ask about criminal records at an initial interview, but could do so after the first interview. And, when asking about a criminal background, employers were prohibited from asking about arrests or anything other than criminal convictions. Violations of the law carried up to a $2,000 penalty.
The Maryland Department of Transportation/Maryland Transit Administration (MDOT/MTA) recently announced its selection of Purple Line Transit Partners as the concessionaire for the new 16.2 mile, 21-station, light rail Purple Line that will run through Montgomery and Prince George’s counties. On April 6, 2016, the Maryland Board of Public Works, comprised of Governor Larry Hogan, Treasurer Nancy Kopp, and Comptroller Peter Franchot, unanimously approved the public private partnership agreement with Purple Line Transit Partners.
We have been following the development of this project for several years. In 2013, Maryland identified it as the first P3 project under new legislation that updated its Public Private Partnership law to facilitate the use of P3s.
There were questions about the viability of the project in 2014 during the gubernatorial election cycle. But after taking office in January 2015, Governor Larry Hogan gave conditional approval to a reduced-cost version of the Purple Line project and outlined three criteria for approval of the project: (1) additional financial support from Montgomery and Prince George’s counties; (2) reserved federal funding; and (3) aggressive pricing from the successful team. Montgomery and Prince George’s counties pledged $330 million in cash and non-cash contributions to the project. The federal government reserved approximately $900 million for the project, with $125 million recommended for FY 2017. Finally, the initial state expenditure for construction cost was reduced by $8 million to $159.8 million, and the amount of the average annual availability payments was reduced by $18 million to $149 million per year over thirty (30) years. As a result, the project is reportedly coming in $550 million below prior estimates, and the Governor approved moving forward with the project.
After months, maybe years, of planning, raising capital, obtaining permits and waiting out construction, your gleaming new building is open and occupied. Soon, you’ll get a simple, one-page letter from your county’s Tax Assessment Office. What should you do if that letter indicates that your property is worth about a half-million dollars more than your appraisal reflects? Every Pennsylvania property owner is entitled to an annual appeal of their property assessment through the real estate tax assessment appeal process. Knowing the value of your property, your tax liability and whether you can reduce your tax burden through an appeal is as critical as managing any other area of your financial portfolio.
Calculating your Property Tax and Fair Market Value (FMV)
In Pennsylvania, real property typically incurs school, city/township and county taxes. Each of the three taxes is assigned a millage rate, which is used to calculate the property’s tax liability. To calculate the total real estate tax owed, the total millage of all of the taxing authorities is multiplied by the property’s assessed value. It is important to note that tax assessment appeals only challenge the assessed value of your property, NOT the imposed millage rate. Millage rates are published on each county’s website.