Construction Contracts
and Dispute Resolution

Paul Berning has had the privilege of representing project owners, general contractors, subcontractors, design professionals, designer-builders, EPC contractors, suppliers and manufacturers on projects of all sizes, from mega to s mall.
Projects:
Some of the projects are well known to the public – the new Tacoma Narrows Bridge, Eurotunnel and the Fillmore Center in San Francisco. The others, not so well known, include dams, mines, process plants, pipelines, water systems, power plants, paper mill, wastewater plants, airports, ports, telecommunications systems, transit systems, condominiums, hospitals, hotels, schools and single-family homes.
Issues:
The cases have involved claims for extra work, project delay, disruption of work, lost efficiency; defective workmanship and materials; terminations for default; non-payment and payment remedies, including mechanics liens, stop payment notices, payment bonds, lien priority disputes and Miller Act claims; project financing; labor and material shortages; bid protests; government contracts; and allegations of false claims.
Troubled Projects:
Mr. Berning has served as counsel to troubled projects, working closely with the project management team, in-house counsel and executives during construction to address problems before they worsen, to position the client for the best possible resolution of disputes and to develop dispute resolution strategies.

Publications

Mr. Berning founded and edited www.ConstructionWebLinks.com from 1999 to 2011. The portal website provides more than 1,000 pages of resources on construction law, regulatory, technical and business issues for the construction, engineering, architecture and infrastructure industries. The site was heavily used and widely praised by industry professionals for its depth of resources and its ease of use.

Mr. Berning also has written on construction law issues, including:

  • The "Construction" chapter in Business and Commercial Litigation in Federal Courts, Thomson West (2d ed.), 2005 and annual supplements.
  • The "Termination Claims from Owner's and Contractor's Perspective" chapter in Proving and Pricing Construction Claims (Wiley 1990).
  • "U.S. Construction, Architecture and Engineering Industry: An Overview for International Investors," a paper presented to the Shanghai Association of International Economic and Technological Cooperation in Shanghai on December 10, 2002, and to the China International Contractors' Association in Beijing on December 12, 2002.

Construction Law Experience

Mr. Berning has represented:

  • The designer-builder of the new Tacoma Narrows Bridge in resolution of litigation with international subcontractors and suppliers involving claims of extra work, defective materials and delay.
  • General contractors in defending against default terminations on urban re-development, wastewater treatment plant and medical facility projects and pressing counterclaims against owners of those projects.
  • Owners in default terminations of general contractors and a general contractor in the default termination of a subcontractor.
  • General contractors in making claims for extra work, delay and lost productivity on power plant and public works projects.
  • Eurotunnel as project owner in defending against extra work and impact claims by the contractor consortium.
  • Apparent low bidders, aggrieved bidders and a government agency in bid protests.
  • A general contractor in negotiating its termination for convenience from a troubled project.
  • A new provider of design and construction services in drafting a suite of design and construction contracts and subcontracts.
  • A general contractor in analyzing liability limitation and risk management issues and advising on mitigation strategies.
  • An engineer-procure-construct contractor in pursuing claims for extra work, delay and disruption on an international process plant project.
  • Contractors in enforcing in stop payment notices against construction lenders, both through negotiation and litigation.
  • Contractors in enforcing and litigating mechanics liens, including lien priority disputes.
  • Project owners in defending against and removing mechanics liens.
  • Subcontractors in enforcing payment bond and public works stop payment notice claims.
  • Owners, contractors, design professionals and subcontractors in in resolving payment disputes.
  • Contractors and owners in enforcing arbitration awards and judgments.
  • A general contractor in defending against Miller Act claims.
  • Contractors in negotiating and drawing on supplier letters of credit.
  • Owners in determining the amount and type of damages available to contractors on their projects and defenses to the damage claims.
  • The owner of an oil pipeline in South America in defending against extra work claims by the EPC contractor.
  • A general contractor in negotiating a joint venture agreement with an equipment manufacturer for a major public works project.
  • A general contractor in defending against subcontractor claims for extra work, delay, disruption on a wastewater project.
  • Industrial, commercial, institutional and residential property owners in making construction defect claims against contractors and design professionals.
  • Factory and theater owners in defending against contractor claims for extra work and asserting delay counterclaims.
  • Contractors and subcontractors in evaluating and making commercial general liability and builders risk insurance claims.
  • A construction manager in defending against construction defect claims by a homeowner’s association.
  • An EPC contractor in seeking payment for services provided and in defending against owner claims on a canceled process plant project.
  • A general contractor in enforcing a subcontractor bid.
  • General contractors in resolving disputes with subcontractors and suppliers, including defaults, stop payment notices and payment claims.
  • Design professionals in challenging selection decisions by government agencies.
  • Contractors and subcontractors in defending against construction defect claims by project owners.
  • Subcontractor in bidding dispute with general contractor.
  • General contractor in challenging responsiveness decision by government agency.