Robinson Cole LLP
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William S. Wilson is a commercial lawyer with more than 25 years of experience representing and counseling  public and private owners, developers, design professionals, suppliers, contractors and subcontractors in the areas of construction and commercial law. He is an experienced commercial litigator with a background in civil engineering who also drafts, reviews, and negotiates all types of construction and commercial contracts. Bill is a member of our firm’s Construction Law group.

Prior to becoming a lawyer, Bill worked for nine years as a civil engineer in the Connecticut Department of Transportation, where he acquired diverse experience in researching and organizing technical information, analyzing complex design problems, and communicating solutions for the design and construction of small- and large-scale infrastructure improvement projects across Connecticut. Bill’s practical, hands-on experience in the construction industry, coupled with his knowledge and breadth of work in construction law, enables him to quickly assess and engage with often-complex construction cases and achieve successful results for his clients. His straight-forward, common sense approach to all disputes leads to cost-effective resolutions. 

  • Western New England University School of Law (Juris Doctor)
  • University of New Hampshire (Bachelors)
    • B.S., Civil Engineering

  • State of Connecticut
  • U.S. Supreme Court
  • U.S. District Court, District of Connecticut
  • U.S. District Court, Eastern District of New York
  • U.S. District Court, Southern District of New York

2025, 2024 and 2023 JD Supra Readers' Choice Awards Top Author in the Construction category

Selected by his peers for inclusion in The Best Lawyers in America© in the areas of Construction Law and Litigation - Construction for 2026, 2025 and 2024

Lawyers Collaborative for Diversity
Executive Board Member (2009 - 2011)

Connecticut Construction Industry Association

Associated General Contractors of America

Associated Builders and Contractors of Connecticut

Connecticut Road Builders Association

Experience


Successful Breach of Contract Arbitration

Successfully represented a construction company in a breach of contract arbitration and secured a $1 million dollar award and settlement.


Publications


Construction Group Out + About teaser
May 2026

Construction Group Out + About

Construction Group Out + About teaser
April 15, 2025

Construction Group Out + About

Construction Group Out + About teaser
December 3, 2024

Construction Group Out + About

Construction Group Out + About teaser
May 2026

Construction Group Out + About

Construction Group Out + About teaser
April 15, 2025

Construction Group Out + About

Construction Group Out + About teaser
December 3, 2024

Construction Group Out + About

Construction Group Out + About teaser
August 16, 2024

Construction Group Out + About

Construction Group Out + About teaser
April 15, 2024

Construction Group Out + About

Construction Law Zone: Rhode Island Affirms the Principle That Sureties Must Be Provided Notice of Default Before They Can Be Held Liable for Principal’s Default teaser
July 2023

Construction Law Zone: Rhode Island Affirms the Principle That Sureties Must Be Provided Notice of Default Before They Can Be Held Liable for Principal’s Default

Construction Deal Report teaser
July 2023

Construction Deal Report

Construction Group Out + About teaser
May 2023

Construction Group Out + About

Construction Law Zone teaser
April 2023

Construction Law Zone



Construction Group Out + About teaser
August 16, 2024

Construction Group Out + About

Construction Group Out + About teaser
April 15, 2024

Construction Group Out + About

Construction Law Zone: Rhode Island Affirms the Principle That Sureties Must Be Provided Notice of Default Before They Can Be Held Liable for Principal’s Default teaser
July 2023

Construction Law Zone: Rhode Island Affirms the Principle That Sureties Must Be Provided Notice of Default Before They Can Be Held Liable for Principal’s Default

Construction Deal Report teaser
July 2023

Construction Deal Report

Construction Group Out + About teaser
May 2023

Construction Group Out + About

Construction Law Zone teaser
April 2023

Construction Law Zone


News


August 26, 2025

78 Robinson+Cole Lawyers Listed in The Best Lawyers in America© 2026

The Best Lawyers in America© has named 78 Robinson+Cole lawyers across the firm’s practice groups and offices for inclusion in and recognition in its 2026 edition. The firm had 57 lawyers resident in its Connecticut offices named to the list and continues to have the highest number of recognized lawyers in the state. Robinson+Cole also has the highest number of listed lawyers in Connecticut in the areas of environmental law, health care law, and insurance law. Additionally, eight lawyers were named Best Lawyers® 2026 “Lawyer of the Year.” A Best Lawyers® “Lawyer of the Year” designation is awarded to one lawyer in each of various high-profile specialties in large legal communities. These lawyers received the highest ratings among their peers for their abilities, professionalism, and integrity. They include: Hartford, CT – Best Lawyers® 2026 “Lawyer of the Year” Christine E. Bromberg – Tax Law Emilee Mooney Scott – Environmental Law Gregory R. Faulkner – Construction Law Joey Lee Miranda – Energy Law John B. Lynch, Jr. – Corporate Law John H. Mutchler – Copyright Law Michael R. Enright – Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law Providence, RI – Best Lawyers® 2026 “Lawyer of the Year” Roger A. Peters, II – Real Estate Law The sixth edition of Best Lawyers: Ones to Watch® in America was also released, which includes 14 Robinson+Cole lawyers. The “Ones to Watch” recognition is given to lawyers early in their careers for their outstanding professional excellence in private practice in the United States. The firm has the highest number of lawyers to receive this designation in Hartford, Connecticut. Inclusion in The Best Lawyers in America® and Best Lawyers: Ones to Watch® in America is determined through a comprehensive peer-review survey. The 2026 awards were created by analyzing over 3.4 million evaluations, assessing over 130,000 vetted nominees. Additional information regarding the Best Lawyers selection methodology can be read here. Congratulations to the following Robinson+Cole lawyers: Hartford, CT – Best Lawyers® Wystan M. Ackerman – Litigation -Insurance Kenneth C. Baldwin – Energy Law Bruce B. Barth – Employee Benefits (ERISA) Law Garry C. Berman – Real Estate Law Patrick M. Birney – Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law Lisa M. Boyle – Health Care Law Dan A. Brody – Commercial Litigation; Criminal Defense: White-Collar Christine E. Bromberg – Nonprofit / Charities Law; Tax Law Dennis C. Cavanaugh – Construction Law; Litigation-Construction Stephen O. Clancy – Commercial Litigation; Litigation - Insurance Thomas P. Cody – Real Estate Law Britt-Marie K. Cole-Johnson – Employment Law - Individuals; Employment Law - Management John L. Cordani – Litigation - Intellectual Property; Trade Secrets Law; Trademark Law Kevin P. Daly – Commercial Litigation Raymond T. DeMeo – Insurance Law Natale V. DiNatale – Employment Law - Management; Labor Law - Management Conor O. Duffy – Health Care Law Michael R. Enright – Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law; Litigation - Bankruptcy Gregory R. Faulkner – Construction Law; Litigation - Construction Brian C. Freeman – Environmental Law; Litigation - Environmental Stephen E. Goldman – Insurance Law Matthew J. Guanci, Jr. – Corporate Law Edward J. Heath – Commercial Litigation Frederick E. Hedberg – Construction Law, Litigation - Construction Christopher J. Hug – Litigation - Construction Rachel V. Kushel – Employment Law - Management; Labor Law - Management John B. Lynch Jr. – Corporate Law; Mergers and Acquisitions Law Michael F. Maglio – Banking and Finance Law; Commercial Finance Law; Equipment Finance Law; Securitization and Structured Finance Law Virginia E. McGarrity – Employee Benefits (ERISA) Law Robert S. Melvin – Environmental Law; Litigation - Environmental Joey Lee Miranda – Energy Law; Energy Regulatory Law; Environmental Law Linda L. Morkan – Appellate Practice John H. Mutchler – Copyright Law; Patent Law; Trademark Law Megan R. Naughton – Immigration Law Martin A. Onorato – Construction Law; Litigation - Construction David M. Panico – Public Finance Law Earl W. Phillips, Jr. – Environmental Law James P. Ray – Environmental Law; Litigation - Environmental Edward J. Samorajczyk, Jr. – Corporate Law; Securities / Capital Markets Law Jacqueline Pennino Scheib – Copyright Law; Trademark Law Emilee Mooney Scott – Environmental Law Jonathan E. Small – Insurance Law Brian R. Smith – Land Use and Zoning Law Rhonda J. Tobin – Insurance Law Theodore J. Tucci – Health Care Law; Insurance Law Abby M. Warren – Employment Law - Management Jeffrey J. White – Commercial Litigation; Mass Tort Litigation / Class Actions - Defendants William S. Wilson II – Construction Law; Litigation - Construction Hartford, CT - Ones to Watch Christopher A. Costain – Personal Injury Litigation - Defendants Jason H. DePatie – Insurance Law Scott T. Garosshen – Appellate Practice Abigail L. Preissler – Banking and Finance Law; Corporate Law Stamford, CT – Best Lawyers®  Patrick W. Begos – Litigation - Insurance Gregory J. Bennici – Insurance Law; Litigation - Insurance Thomas J. Donlon – Appellate Practice Steven L. Elbaum – Real Estate Law John H. Kane – Insurance Law Eric M. Kogan – Corporate Law Charles F. Martin III – Real Estate Law John F.X. Peloso Jr. – Litigation - Real Estate Patricia D. Weitzman – Health Care Law; Litigation - Health Care Stamford, CT - Ones to Watch Emily C. Deans – Energy Law Austin G. Provost – Real Estate Law Boston, MA - Best Lawyers® Joseph A. Barra – Construction Law Kendra L. Berardi – Real Estate Law Amanda S. Eckhoff – Real Estate Law Michael S. Giaimo – Land Use and Zoning Law; Real Estate Law E. Christopher Kehoe – Real Estate Law Matthew J. Lawlor – Land Use and Zoning Law; Real Estate Law Seth B. Orkand – Criminal Defense: General Practice, Criminal Defense: White-Collar Kathleen M. Porter – Information Technology Law Deirdre M. Robinson – Real Estate Law Boston, MA - Ones to Watch Jessica D. Bardi – Environmental Law; Land Use and Zoning Law; Litigation - Environmental Jonathan L. Cabot – Corporate Law; Public Finance Law Julianna M. Charpentier – Commercial Litigation; Litigation - Real Estate Jeffrey R. Gribouski – Commercial Litigation; Insurance Law; Litigation – Construction; Litigation – Environmental; Personal Injury Litigation - Defendants New York, NY - Best Lawyers® Ian T. Clarke-Fisher – Litigation - Labor and Employment E. Evans Wohlforth, Jr. – Commercial Litigation New York, NY - Ones to Watch Janet (Zhanna) Kljyan – Commercial Litigation Albany, NY - Best Lawyers® Danielle H. Tangorre – Administrative / Regulatory Law; Elder Law; Health Care Law Philadelphia, PA - Best Lawyers® Laurie A. Krepto – Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law Philadelphia, PA - Ones to Watch Katherine M. Fix – Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law Wilmington, DE - Best Lawyers® Natalie D. Ramsey – Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law; Litigation - Bankruptcy Providence, RI - Best Lawyers® William M. Daley – Commercial Litigation; Insurance Law; Litigation - Insurance Linn F. Freedman – Artificial Intelligence Law; Commercial Litigation; Privacy and Data Security Law Dana M. Horton – Insurance Law; Litigation - Insurance; Personal Injury Litigation - Defendants Patricia J. Igoe – Commercial Finance Law Roger A. Peters II – Real Estate Law Daniel F. Sullivan – Insurance Law George W. Watson III – Energy Regulatory Law Miami, FL -  Ones to Watch Audrey E. Goldman – Insurance Law Washington, DC - Ones to Watch Kyle G. Hepner – Intellectual Property Law; Litigation - Intellectual Property

Firm receives top listing in Connecticut lawyer count in national peer review survey
78 Robinson+Cole Lawyers Listed in The Best Lawyers in America© 2026 teaser
March 27, 2025

Bill Wilson Shares Insights on the Challenges of Flow-Down Clauses For GCs

Construction Dive
March 7, 2025

William Wilson Recognized as a “Top Author”

2025 JD Supra Readers' Choice Awards
William Wilson Recognized as a “Top Author” teaser
August 26, 2025

78 Robinson+Cole Lawyers Listed in The Best Lawyers in America© 2026

The Best Lawyers in America© has named 78 Robinson+Cole lawyers across the firm’s practice groups and offices for inclusion in and recognition in its 2026 edition. The firm had 57 lawyers resident in its Connecticut offices named to the list and continues to have the highest number of recognized lawyers in the state. Robinson+Cole also has the highest number of listed lawyers in Connecticut in the areas of environmental law, health care law, and insurance law. Additionally, eight lawyers were named Best Lawyers® 2026 “Lawyer of the Year.” A Best Lawyers® “Lawyer of the Year” designation is awarded to one lawyer in each of various high-profile specialties in large legal communities. These lawyers received the highest ratings among their peers for their abilities, professionalism, and integrity. They include: Hartford, CT – Best Lawyers® 2026 “Lawyer of the Year” Christine E. Bromberg – Tax Law Emilee Mooney Scott – Environmental Law Gregory R. Faulkner – Construction Law Joey Lee Miranda – Energy Law John B. Lynch, Jr. – Corporate Law John H. Mutchler – Copyright Law Michael R. Enright – Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law Providence, RI – Best Lawyers® 2026 “Lawyer of the Year” Roger A. Peters, II – Real Estate Law The sixth edition of Best Lawyers: Ones to Watch® in America was also released, which includes 14 Robinson+Cole lawyers. The “Ones to Watch” recognition is given to lawyers early in their careers for their outstanding professional excellence in private practice in the United States. The firm has the highest number of lawyers to receive this designation in Hartford, Connecticut. Inclusion in The Best Lawyers in America® and Best Lawyers: Ones to Watch® in America is determined through a comprehensive peer-review survey. The 2026 awards were created by analyzing over 3.4 million evaluations, assessing over 130,000 vetted nominees. Additional information regarding the Best Lawyers selection methodology can be read here. Congratulations to the following Robinson+Cole lawyers: Hartford, CT – Best Lawyers® Wystan M. Ackerman – Litigation -Insurance Kenneth C. Baldwin – Energy Law Bruce B. Barth – Employee Benefits (ERISA) Law Garry C. Berman – Real Estate Law Patrick M. Birney – Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law Lisa M. Boyle – Health Care Law Dan A. Brody – Commercial Litigation; Criminal Defense: White-Collar Christine E. Bromberg – Nonprofit / Charities Law; Tax Law Dennis C. Cavanaugh – Construction Law; Litigation-Construction Stephen O. Clancy – Commercial Litigation; Litigation - Insurance Thomas P. Cody – Real Estate Law Britt-Marie K. Cole-Johnson – Employment Law - Individuals; Employment Law - Management John L. Cordani – Litigation - Intellectual Property; Trade Secrets Law; Trademark Law Kevin P. Daly – Commercial Litigation Raymond T. DeMeo – Insurance Law Natale V. DiNatale – Employment Law - Management; Labor Law - Management Conor O. Duffy – Health Care Law Michael R. Enright – Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law; Litigation - Bankruptcy Gregory R. Faulkner – Construction Law; Litigation - Construction Brian C. Freeman – Environmental Law; Litigation - Environmental Stephen E. Goldman – Insurance Law Matthew J. Guanci, Jr. – Corporate Law Edward J. Heath – Commercial Litigation Frederick E. Hedberg – Construction Law, Litigation - Construction Christopher J. Hug – Litigation - Construction Rachel V. Kushel – Employment Law - Management; Labor Law - Management John B. Lynch Jr. – Corporate Law; Mergers and Acquisitions Law Michael F. Maglio – Banking and Finance Law; Commercial Finance Law; Equipment Finance Law; Securitization and Structured Finance Law Virginia E. McGarrity – Employee Benefits (ERISA) Law Robert S. Melvin – Environmental Law; Litigation - Environmental Joey Lee Miranda – Energy Law; Energy Regulatory Law; Environmental Law Linda L. Morkan – Appellate Practice John H. Mutchler – Copyright Law; Patent Law; Trademark Law Megan R. Naughton – Immigration Law Martin A. Onorato – Construction Law; Litigation - Construction David M. Panico – Public Finance Law Earl W. Phillips, Jr. – Environmental Law James P. Ray – Environmental Law; Litigation - Environmental Edward J. Samorajczyk, Jr. – Corporate Law; Securities / Capital Markets Law Jacqueline Pennino Scheib – Copyright Law; Trademark Law Emilee Mooney Scott – Environmental Law Jonathan E. Small – Insurance Law Brian R. Smith – Land Use and Zoning Law Rhonda J. Tobin – Insurance Law Theodore J. Tucci – Health Care Law; Insurance Law Abby M. Warren – Employment Law - Management Jeffrey J. White – Commercial Litigation; Mass Tort Litigation / Class Actions - Defendants William S. Wilson II – Construction Law; Litigation - Construction Hartford, CT - Ones to Watch Christopher A. Costain – Personal Injury Litigation - Defendants Jason H. DePatie – Insurance Law Scott T. Garosshen – Appellate Practice Abigail L. Preissler – Banking and Finance Law; Corporate Law Stamford, CT – Best Lawyers®  Patrick W. Begos – Litigation - Insurance Gregory J. Bennici – Insurance Law; Litigation - Insurance Thomas J. Donlon – Appellate Practice Steven L. Elbaum – Real Estate Law John H. Kane – Insurance Law Eric M. Kogan – Corporate Law Charles F. Martin III – Real Estate Law John F.X. Peloso Jr. – Litigation - Real Estate Patricia D. Weitzman – Health Care Law; Litigation - Health Care Stamford, CT - Ones to Watch Emily C. Deans – Energy Law Austin G. Provost – Real Estate Law Boston, MA - Best Lawyers® Joseph A. Barra – Construction Law Kendra L. Berardi – Real Estate Law Amanda S. Eckhoff – Real Estate Law Michael S. Giaimo – Land Use and Zoning Law; Real Estate Law E. Christopher Kehoe – Real Estate Law Matthew J. Lawlor – Land Use and Zoning Law; Real Estate Law Seth B. Orkand – Criminal Defense: General Practice, Criminal Defense: White-Collar Kathleen M. Porter – Information Technology Law Deirdre M. Robinson – Real Estate Law Boston, MA - Ones to Watch Jessica D. Bardi – Environmental Law; Land Use and Zoning Law; Litigation - Environmental Jonathan L. Cabot – Corporate Law; Public Finance Law Julianna M. Charpentier – Commercial Litigation; Litigation - Real Estate Jeffrey R. Gribouski – Commercial Litigation; Insurance Law; Litigation – Construction; Litigation – Environmental; Personal Injury Litigation - Defendants New York, NY - Best Lawyers® Ian T. Clarke-Fisher – Litigation - Labor and Employment E. Evans Wohlforth, Jr. – Commercial Litigation New York, NY - Ones to Watch Janet (Zhanna) Kljyan – Commercial Litigation Albany, NY - Best Lawyers® Danielle H. Tangorre – Administrative / Regulatory Law; Elder Law; Health Care Law Philadelphia, PA - Best Lawyers® Laurie A. Krepto – Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law Philadelphia, PA - Ones to Watch Katherine M. Fix – Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law Wilmington, DE - Best Lawyers® Natalie D. Ramsey – Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law; Litigation - Bankruptcy Providence, RI - Best Lawyers® William M. Daley – Commercial Litigation; Insurance Law; Litigation - Insurance Linn F. Freedman – Artificial Intelligence Law; Commercial Litigation; Privacy and Data Security Law Dana M. Horton – Insurance Law; Litigation - Insurance; Personal Injury Litigation - Defendants Patricia J. Igoe – Commercial Finance Law Roger A. Peters II – Real Estate Law Daniel F. Sullivan – Insurance Law George W. Watson III – Energy Regulatory Law Miami, FL -  Ones to Watch Audrey E. Goldman – Insurance Law Washington, DC - Ones to Watch Kyle G. Hepner – Intellectual Property Law; Litigation - Intellectual Property

Firm receives top listing in Connecticut lawyer count in national peer review survey
78 Robinson+Cole Lawyers Listed in The Best Lawyers in America© 2026 teaser
March 27, 2025

Bill Wilson Shares Insights on the Challenges of Flow-Down Clauses For GCs

Construction Dive
March 7, 2025

William Wilson Recognized as a “Top Author”

2025 JD Supra Readers' Choice Awards
William Wilson Recognized as a “Top Author” teaser
August 15, 2024

78 Robinson+Cole Lawyers Listed in The Best Lawyers in America© 2025

78 Robinson+Cole Lawyers Listed in <i>The Best Lawyers in America</i>© 2025 teaser
March 4, 2024

William Wilson Receives “Top” Honors in Construction Law in JD Supra’s 2024 Readers’ Choice Award

JD Supra
William Wilson Receives “Top” Honors in Construction Law in JD Supra’s 2024 Readers’ Choice Award teaser
March 6, 2023

Robinson+Cole Lawyers, Firm Receive “Top” Honors in JD Supra’s 2023 Readers’ Choice Awards

JD Supra
November 22, 2022

R+C Volunteers Present Junior Achievement Programs in Hartford School


August 15, 2024

78 Robinson+Cole Lawyers Listed in The Best Lawyers in America© 2025

78 Robinson+Cole Lawyers Listed in <i>The Best Lawyers in America</i>© 2025 teaser
March 4, 2024

William Wilson Receives “Top” Honors in Construction Law in JD Supra’s 2024 Readers’ Choice Award

JD Supra
William Wilson Receives “Top” Honors in Construction Law in JD Supra’s 2024 Readers’ Choice Award teaser
March 6, 2023

Robinson+Cole Lawyers, Firm Receive “Top” Honors in JD Supra’s 2023 Readers’ Choice Awards

JD Supra
November 22, 2022

R+C Volunteers Present Junior Achievement Programs in Hartford School

Construction Law Zone


Below is an excerpt of the Construction Law Zone blog posts authored by Bill.

The Long-Standing Waiver for Manufactured Products from FHWA’s Buy America Requirements is Phasing Out

Amidst the flurry of tariff threats swirling around the world, the Federal Highway Administration (FHWA) is terminating the waiver known as the Manufactured Products General Waiver from the Buy America requirements found in 23 U.S.C.A § 313. The Buy America regulation requires all federal-aid projects to use only steel, iron, and manufactured products that are produced in the United States. Since 1983, these requirements have been waived for manufactured products that were permanently incorporated into federal-aid projects by not requiring such products to be produced domestically, apart from predominantly iron or steel components of manufactured products. This waiver is being phased out  in 23 C.F.R. 635.410, an amendment to the Buy America regulation which establishes new standards that will apply to manufactured products on federal-aid projects. The final rule was published in the Federal Register on January 14, 2025 (Vol. 90, No. 8, pp. 2932-58). The new rule, 23 C.F.R. 635.410, defines “manufactured products” as “articles, materials, or supplies that have been processed into a specific form and shape, or combined with other articles, materials, or supplies to create a product with different properties than the individual articles, materials, or supplies.” A manufactured product does not include an article, material, or supply if it is “classified as an iron or steel product, an excluded material, or another product category as specified by law or in 2 C.F.R. part 184” or “mixtures of excluded materials delivered to a work site without final form for incorporation into a project.” However, “an article, material, or supply classified as a manufactured product may include components that are iron or steel products, excluded materials, or other product categories as specified by law or in 2 C.F.R. part 184.” Manufactured products must be manufactured in the United States effective for federal-aid projects obligated on or after October 1, 2025. The Manufactured Products General Waiver will remain in place until then. The additional requirement to have greater than 55% of the manufactured product’s components, by cost, be mined, produced, or manufactured in the United States becomes effective for federal-aid projects obligated on or after October 1, 2026. For all federal-aid projects obligated on or after October 1, 2026, all manufactured products permanently incorporated into the project must both be manufactured in the United States and have the cost of the components of the manufactured product that are mined, produced, or manufactured in the United States be greater than 55% of the total cost of all components of the manufactured product. Under the new rule, an article, material, or supply is generally only subject to one set of requirements. The classification of an article, material, or supply is made based on its status at the time it is brought to the work site for incorporation into an infrastructure project. The work site is the location of the infrastructure project at which the iron or steel product or manufactured product will be incorporated. The new rule also provides additional clarifications for precast concrete products and enclosures of electronic hardware systems classified as manufactured products, as well as, how to determine whether the cost of components for manufactured products is greater than 55% of the total cost of all components.

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Under New York Law a Recourse Provision Bars Most Claims Except for Fraud

In Iberdrola Energy Projects v. Oaktree Capital Management L.P., 231 A.D.3d 33, 216 N.Y.S.3d 124, the Appellate Division for the First Department ruled that a nonrecourse provision in a contract barred a plaintiff’s causes of action for tortious interference with contract, unjust enrichment, and statutory violations of a trade practices statute, but not for fraud. This case arose from a contract related to the construction of a power plant in Salem, Massachusetts. A choice-of-law provision dictated that the contract was governed by and construed in accordance with New York law. Defendants created a special-purpose entity (SPE) to serve as the company charged with constructing the new plant. Defendants owned, controlled, and managed the SPE and were the SPE’s majority and controlling equity holders. The majority of the SPE’s board of directors and officers were also defendants’ employees. The SPE retained plaintiff to be the project’s engineering, procurement, and construction contractor. The contract permitted the SPE to terminate the contract for convenience or for a material breach by the contractor. In the event of termination for cause, the owner would incur substantial payment obligations; a termination for convenience would not. The contract required the contractor to post a standby letter of credit in the amount of approximately $140 million as security for the contractor’s performance. The owner was permitted to draw on the letter of credit only “upon any Contractor’s breach or failure to perform, when and as required, any of its material obligations under the Contract.” The contract contained a nonrecourse provision that provided that, [Owner’s] obligations hereunder are intended to be the obligations of Owner and of the corporation which is the sole general partner of Owner only and no recourse for any obligation of Owner hereunder, or for any claim based thereon or otherwise in respect thereof, shall be had against any incorporator, shareholder, officer or director or Affiliate, as such, past, present or future of such corporate general partner or any other subsidiary or Affiliate of any such direct or indirect parent corporation or any incorporator, shareholder, officer or director, as such, past, present or future, of any such parent or other subsidiary or Affiliate. The project was plagued with delays and cost overruns. When the project was 98% complete, the SPE terminated for cause. The SPE drew the $140 million afforded by the letter of credit, retained a replacement contractor, and completed the remaining work. The original contractor filed for arbitration against the SPE, claiming that the SPE breached the contract, engaged in tortious conduct, violated the Massachusetts Unfair Trade Practice Act, and sought $700 million in damages. The SPE appeared in the arbitration proceeding and asserted counterclaims. The arbitration panel determined, among other things, that the SPE lacked cause to terminate the contract and that it terminated the contract as a pretense to draw on the letter of credit and issued a final award in the contractor’s favor for $236,404,377. That award was confirmed in New York, and the SPE filed for bankruptcy. The original contractor filed a civil action in New York, bringing the same claims against the defendants, but all counts except for fraud were dismissed based on the nonrecourse provision. The New York lower court enforced the plain meaning of the nonrecourse provision, which sophisticated commercial parties negotiated. The nonrecourse provision is a contractual limitation on liability, which, like other exculpatory clauses, is generally enforceable provided it does not violate a statute or run afoul of public policy. The court determined the provision to be “as broad as it is clear: no liability could be imposed upon various individuals and entities for “any claim based on the contract or otherwise in respect thereof.” Plaintiff’s causes of action for tortious interference with contract, unjust enrichment, and violations of Massachusetts’s deceptive trade practices statute were all hinged or predicated on conduct taken under or in contravention of the contract. Since these causes of action were all related to or connected with the contract, they were all barred by the nonrecourse provision. The court showed no sympathy for the plaintiff contractor and its likely inability to recover any part of the judgment it was holding. The plaintiff knew it was entering a very large contract with an SPE and should have known of the breadth of the nonrecourse provision. The takeaway appears to be: Beware of nonrecourse provisions with SPEs.

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Requirements For Professional Engineers Practicing in Connecticut

Many out-of-state professional engineering companies practice engineering in Connecticut and may not be aware of all the requirements to do so. Connecticut has certain requirements for corporations and limited liability companies (LLCs) engaging in the practice of engineering. The applicable law, General Statutes §§ 20-306a and 20-306b, requires that (1) the personnel who act as engineers on behalf of the company must be either licensed in Connecticut or exempt from Connecticut’s license requirements, and (2) the company must have been issued a certificate of registration by the State Board of Examiners for Professional Engineers and Land Surveyors (State Board). Professional engineering firms must be registered with the Secretary of State as a domestic or foreign firm prior to applying for registration from the State Board. In addition, no less than two-thirds of the individual members of an LLC or owners of a professional corporation must be individually licensed as professional engineers in Connecticut. The Connecticut Department of Consumer Protection maintains a list of all professional engineers licensed in Connecticut and all State Board registrations. Caselaw interpreting these requirements is sparse. Strict compliance with the State Board registration requirement is not always required. In Rowley Engineering & Associates, P.C. v. Cuomo, 1991 WL 27286 (Conn. Super. Jan. 2, 1991), the defendant alleged that the plaintiff professional corporation was not entitled to its design fees because it had not been issued a certificate of registration and thus did not comply with Conn. Gen. Stat. § 20-306a. The Rowley Court rejected this argument, reasoning that the statute was established for administrative purposes to allow professional engineers to practice in a corporate form and not safeguarding life, health, or property. The Court found substantial compliance with the statute, reasoning that all of the design professionals in Rowley were, in fact, licensed to practice in Connecticut. Thus, the purpose of licensure—to protect the public—was essentially satisfied. However, strict compliance with Connecticut’s professional engineer license requirement is required. In Anmahian Winton Architects v. J. Elliot Smith Holdings, LLC, 2010 WL 1544418 (Conn. Super. Mar. 16, 2010), the Court confirmed that a professional engineer or architect license in Connecticut is required to practice in Connecticut and it does not matter that such professional is licensed in any other state. The failure to be licensed in Connecticut precludes professional engineers from enforcing their right to payment for work performed. Professional engineering companies practicing in Connecticut should be familiar with all state requirements. The failure to do so could result in being terminated from a project and not getting paid for work otherwise properly performed. Even if the company substantially complies with the State Board registration requirement, it could be difficult to explain this to an inquiring owner.

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First Circuit Broadly Interprets Exclusion in Commercial General Liability Policy Under Current Massachusetts Law

In Admiral Insurance Co. v. Tocci Building Corp., 120 F.4th 933 (1st Cir. 2024), the federal Court of Appeals ruled that, under current Massachusetts law, a general contractor’s Commercial General Liability (CGL) policy does not cover damage to non-defective work resulting from defective work by subcontractors. The defendant contractor was retained as a construction manager for an entire residential construction project. After several work quality issues and delays on the project, the contractor was terminated before the project’s completion. The owner of the project filed suit against the contractor for breach of contract and related claims but did not allege negligence by the contractor. The complaint included allegations of defective work by the contractor’s subcontractors leading to various instances of damage to non-defective work on the project including: (1) damage to sheetrock resulting from faulty roof work; (2) mold formation resulting from inadequate sheathing and water getting into the building; and (3) damage to a concrete slab, wood framing, and underground pipes resulting from soil settlement due to improper backfill and soil compaction. The contractor’s request for defense and indemnification coverage under its CGL policy was denied by its insurer. The insurer filed suit seeking a declaratory judgment confirming it had no obligation to defend or indemnify the contractor. The district court granted summary judgment in favor of the insurer and the contractor appealed. The Court examined the “Damage to Property” exclusion outlined in subsection (I)(2)(j) of the CGL policy, which provides that there is no coverage for “property damage” to “(6) [t]hat particular part of any property that must be restored, repaired or replaced because ‘your work’ was incorrectly performed on it.” The CGL policy defines “your work,” in relevant part, as “work or operations performed by you or on your behalf.” Since the complaint alleged damage resulting from the contractor’s “incorrectly performed” work on the entire project, the Court interpreted the (j)(6) exclusion as applying to the entirety of the project where the contractor was the construction manager charged with supervising and managing the whole project, the Court enforced the exclusion against coverage for the contractor. The Court also examined the exception to the exclusion in (j)(6), which provides that the exclusion does not apply to “‘property damage’ included in the ‘products-completed operations hazard.’” The “products-completed operations hazard,” in turn, “includes all ‘bodily injury’ and ‘property damage’ occurring away from premises you own or rent and arising out of ‘your product’ or ‘your work’ except ... (2) work that has not yet been completed or abandoned.” Since the contractor was terminated and did not complete or abandon the project prior to damage, the court of appeals concluded that the coverage exclusion in (j)(6) still applied. In closing, the court of appeals left the door open for potential coverage for damage to non-defective, work arising from a subcontractor’s defective work even with the (j)(6) exclusion. Since the Massachusetts Supreme Judicial Court has yet to rule on the issue, it could interpret “property damage” caused by an “occurrence” to encompass this type of damage, which could allow a general contractor to potentially receive coverage if the work is completed or abandoned, as the exception to the exclusion would then apply.

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Suit Limitation Provisions in New York

New York law generally enforces a contractual suit limitation that specifies a “reasonable” period of time (usually shorter than the applicable statute of limitations) within which an action must be commenced. The contractual suit limitation needs to be fair and reasonable, given the circumstances of each particular case. The New York Court of Appeals recently examined this precedent in the context of an insurance policy enforcing an insurance contract’s two-year suit limitation period in Farage v. Associated Insurance Management Corp., 2024 N.Y. Slip Op. 05875 (Nov. 26, 2024). In Farage, a Staten Island multi-unit apartment building was damaged in a fire. The plaintiff owner filed its full repair claim for damages with its insurer six years after the fire and four years after the expiration of the contractual limitation period. The insurer denied the claim. The plaintiff filed suit for breach of contract and breach of the covenant of good faith fair dealing. The insurer moved to dismiss the action based on the two-year limitation provision in the insurance contract. The insurance policy provided that an insured “may not bring a legal action” under the policy unless: “(a) There has been full compliance with all of the terms of this insurance; and (b) The action is brought within 2 years after the date on which the direct physical loss or damage occurred.” The policy further provided that the “[Insurer] will not pay on a replacement cost basis for any loss or damage: (i) Until the lost or damaged property is actually repaired or replaced; and (ii) Unless the repairs or replacement are made as soon as reasonably possible after the loss or damage.” The lower court granted the insurer’s motion to dismiss the complaint in its entirety, and the Court of Appeals affirmed. While the owner relied on an earlier New York precedent, Executive Plaza, LLC v. Peerless Ins. Co., 22 N.Y.3d 511 (2014), which allowed the nullification of a suit limitation provision if a plaintiff demonstrates the damaged property could not be replaced within the limitation period, that authority was distinguished because the owner ultimately failed to allege that it reasonably attempted to repair the property within the two-year limitations period but was unable to do so. Without allegations of specific remedial actions to restore the property within the limitation period showing that such provision was unreasonable under the circumstances, a suit limitation provision will be enforced. Typically, at least one party to a construction contract will benefit from a suit limitation provision. The statute of limitations for contract actions in New York is six years. Reducing this statutory period down to two years by agreement, which should be fair and reasonable for most construction contracts (other than design contracts), limits uncertainty and potential stale claims long after a project is completed. Such a provision should be relatively easy to enforce in court as well.

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Massachusetts Appellate Court Confirms Construction Defects are Not Covered Under Commercial General Liability Policies

In a case of first impression in Massachusetts, Lessard v. R.C. Havens & Sons, Inc., 104 Mass. App. Ct. 572 (2024), the Appellate Court confirmed that construction defects, without more, do not constitute property damage within the meaning of a commercial general liability policy (CGL). In Lessard, the homeowners filed suit against an insured homebuilder for construction defects in their home. After the homeowners won a jury verdict, the homebuilder’s insurer intervened and sought a declaratory judgment that it owed no duty to indemnify the homebuilder under its CGL policy. The superior court entered a declaratory judgment in favor of the insurer, and the homeowners appealed. The Appeals Court determined that it needed only to address whether the homeowners’ losses constituted “property damage” within the meaning of the CGL policy to reach its decision. The CGL policy required the insurer to “pay those sums that the insured becomes legally obligated to pay as damages because of ... ‘property damage’ ... to which this insurance applies.” The policy defined “property damage” to mean “physical injury to tangible property, including all resulting loss of use of that property” or “loss of use of tangible property that is not physically injured.” The court acknowledged and accepted the reasoning from other jurisdictions that CGL policies “define ‘property damage’ as ‘physical injury,’ which suggests the property was not defective at the outset, but rather was initially proper and injured thereafter” as well as the common distinction “between claims for the costs of repairing or removing construction defects, which are not claims for property damage, and claims for the costs of repairing damage caused by construction defects, which are claims for property damage.” The declaratory judgment was affirmed since the homeowners did not provide any evidence of their repair costs at trial, and the underlying jury verdict only awarded damages for the costs of repairing or removing construction defects.

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For Whom Additional Insured Coverage Applies in New York

Simply including a requirement in a contract to add certain parties as additional insureds under a commercial general liability insurance (CGL) policy may not be enough to ensure such coverage is provided in New York. In New York City Hous. Auth. v. Harleysville Worcester Ins. Co., 226 A.D.3d 804 (2024), the New York Supreme Court Appellate Division – Second Department ruled that the language in an insurance endorsement required privity of contract with the insured party subcontractor to obtain additional insured status and denied coverage to others despite a provision in a subcontract requiring such additional insured coverage. In this case, an owner entered into a contract with a general contractor for construction services. The general contractor entered into a subcontract with a subcontractor. The subcontractor agreed to procure and maintain a CGL policy naming the owner, the general contractor, and another related party as additional insureds thereunder. An employee of the subcontractor was injured on the project and sued the three additional insureds and several other parties. Subcontractor’s insurance company refused to defend and indemnify any party other than the general contractor. All the parties sued by the subcontractor’s employee brought an action against the subcontractor’s insurance company, seeking coverage for defense and indemnification as additional insureds under the subcontractor’s CGL policy. The subcontractor’s insurance endorsement at issue is provided in the below relevant part: Who is an insured is amended to include as an insured any person or organization for whom you are performing operations only as specified under a written contract ... that requires that such person or organization be added as an additional insured on your policy. The court interpreted the prepositional phrase “for whom” to require privity of contract between the named insured subcontractor and the party seeking additional insured status. Since the general contractor was the only party who contracted directly with the subcontractor, only the general contractor qualified for additional insured coverage under the terms of the CGL policy. Even though the subcontractor agreed to add other parties as additional insureds in the subcontract, the language in the endorsement precluded all other parties not in privity with the subcontractor from additional insured coverage. The court also ruled that the language in the subcontract incorporating the terms of the prime contract between the owner and general contractor, which required the general contractor to add the owner as an additional insured under its policy, was insufficient to confer additional insured status on the owner with respect to the subcontractor’s policy. To ensure additional insured coverage in New York, owners and general contractors should obtain and review copies of all subcontractor insurance policies and endorsements before the commencement of work to ensure a prepositional phrase such as “for whom” or “with whom” relating to privity of contract is not included as a condition of additional insured coverage.

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USDOT’S DBE Program Blocked in Kentucky and Indiana

The end of the U.S. Department of Transportation’s (USDOT) Disadvantaged Business Enterprise (DBE) program is getting closer. The DBE program presumes women and minority-owned firms are disadvantaged and sets goals for them to be awarded at least 10% of the value in federal contracts. In a well-reasoned and compelling decision, the U.S. District Court for the Eastern District of Kentucky granted a limited preliminary junction against USDOT’s DBE program in the case Mid-America Milling Co., LLC v. U.S. Department of Transportation, et al., No. 3:23-cv-72-GFVT, 2024 WL 4267183 (E.D. Ky Sept. 23, 2024). The Mid-America court found that the race and gender-based rebuttable presumptions used in the DBE program violate the U.S. Constitution’s guarantee of equal protection under the Fourteenth Amendment. The plaintiffs in Mid-America challenged the use of the DBE presumption when determining whether a person is socially disadvantaged on the grounds that such a program giving preference to certain companies based on race and gender constitutes unconstitutional racial discrimination. The plaintiffs alleged that the DBA program prevents them from competing on government contracts on equal footing with firms owned by women and certain racial minorities and filed suit seeking a declaratory judgment and preliminary and permanent injunctions enjoining the USDOT from applying the DBE’s race and gender-based classifications.   The court methodically dismantled the government’s arguments against the plaintiffs’ standing to bring the lawsuit as well as its arguments against the requirements necessary to sustain a preliminary junction. The plaintiffs have standing to bring suit because they sufficiently established an injury resulting from the denial of equal treatment, which is fairly traceable to the DBE program’s race- and gender-based presumption. The plaintiffs also established that their injury resulting from the denial of equal treatment is redressable by a favorable decision by the court. The court examined the requirements for a preliminary injunction and found all were satisfied. The court held that the plaintiffs would likely win on the merits of their constitutional claims. The government failed to prove that the racial classifications in the DBE program were being employed to further the only applicable compelling government interest of remediating past discrimination. The government offered only broad societal discrimination types of evidence, such as disparity studies, statistical disparity evidence, anecdotal evidence, and expert reports— the court found that such evidence is too broad and insufficient to prove past discrimination against the many groups to whom it grants a preference under the DBE program. The government also failed to prove that the DBE program’s race-based rebuttable presumption was narrowly tailored because it only covers some minority groups and lacks a logical endpoint. The government offered similar societal discrimination evidence to support the DBE program’s gender classifications to remedy past discrimination, which the court also rejected because it failed to prove that the government participated in intentional discrimination within the context of USDOT-funded contracts. The court also found the plaintiffs would suffer irreparable harm if a preliminary injunction was not issued because contracts with DBE goals would continue to be issued, and when they are, the plaintiffs would be at an automatic disadvantage to certain types of competitors. Lastly, the court concluded that the temporary relief sought would not cause substantial harm to others and would serve the public’s interest.   While this decision is limited to the contracts the plaintiffs bid on in Kentucky and Indiana, its comprehensive analysis of the applicable law might serve as a guideline for similar actions nationwide and ultimately the U.S. Supreme Court.

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New Mexico Holds One-Sided Dispute Resolution Provisions Are Unenforceable

Dispute resolution provisions that grant one party the unilateral right to choose either litigation or arbitration to resolve disputes are common in the construction industry. The main difference between the two forums is that courts are more likely to strictly enforce contract terms as written as well as the applicable law, while arbitrators make decisions on more equitable considerations, untethered to the contract terms and—to some degree—the law. The party with the sole discretion to select the dispute resolution procedure can select the process most beneficial to its interests based on the nature of the dispute, regardless of who brings the claims. In Atlas Electrical Construction, Inc. v. Flintco, LLC, 550 P.3d 881 (N.M. Ct. App. 2024), the Court of Appeals of New Mexico recently held that an arbitration provision in a subcontract, under which the contractor retained the exclusive right to choose whether disputes arising under the subcontract were litigated in court or arbitrated was unreasonably one-sided, substantively unconscionable, and unenforceable. The Atlas Electrical case involved two sophisticated entities with equal bargaining strength to negotiate the terms of a subcontract. The parties agreed to a subcontract provision which provided in the relevant part: In the event [contractor] and [subcontractor] cannot resolve the dispute through direct discussions or mediation ... then the dispute shall, at the sole discretion of [contractor], be decided either by submission to (a) arbitration ... or (b) litigation ... The subcontractor filed a lawsuit in court, and the contractor moved the court to compel arbitration. The lower court granted the contractor’s motion, and the subcontractor appealed, claiming the arbitration provision was substantively unconscionable and unenforceable. The Court of Appeals analyzed the arbitration provision under the principles of state contract law, which calls for enforcing the terms of a contract unless there is a claim of fraud, unconscionability, or other grossly inequitable conduct.   On appeal, the contractor conceded that the arbitration provision was facially one-sided but still fair and reasonable and should be enforced. The contractor argued that both parties were sophisticated parties with equal bargaining power, the subcontract price was over $10.7 million, the subcontractor was able to, and did, in fact, negotiate the subcontract terms and failed to make any changes to the arbitration provision—the court rejected this argument. Since the contractor retained the exclusive right to choose whether disputes arising under the subcontract are litigated or arbitrated and the subcontractor retains no right under the subcontract to choose the forum for dispute resolution for any reason whatsoever, the contractor carved out a choice of forum for its preferred claims while also forcing the subcontractor to submit to contractor’s choice of forum for the subcontractor’s preferred claims. The court held that such an arbitration provision is so unreasonably one-sided and substantively unconscionable that it is unenforceable. The court ordered the arbitration provision to be severed from the subcontract and remanded the case to the lower court for further proceedings. While this decision is limited to New Mexico, contract law analysis is similar in most other states, and the reasoning in this case may resonate with other state courts as well.

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Rhode Island Closes One Bridge and May Have Burned Others with Ensuing Lawsuit

The state of Rhode Island recently filed a lawsuit against 13 companies that provided design, construction, and inspection services over the past ten years (the extent allowed by the applicable statute of limitations) to the Washington Bridge, which carries I-195 between East Providence and Providence. The bridge was abruptly closed in December 2023 following the discovery of alleged fractured steel tie-downs critical to the bridge’s stability and additional deterioration in cantilever beams throughout the bridge. Before the closure, approximately 90,000 vehicles per day traveled over the bridge. The complaint alleges that the defendants, the majority of which are experienced, industry-leading firms in their respective fields, were negligent and breached their respective contracts with the State. The State contends that every company that worked on the bridge over the past ten years missed the serious structural conditions alleged. The lawsuit also claims that the State has suffered millions of dollars of damages since the bridge was closed and seeks indemnity and contribution from all defendants to the extent that the State may be liable to third parties in the future. The State does not acknowledge any responsibility for any of the issues with the Washington Bridge despite having approved the original “one of a kind” design and first learning of potential problems with such design as far back as 1992. The Boston Globe reported that the State also hopes to avoid disclosing information regarding its responsibilities for the bridge, including a recently completed forensic analysis of the cause of the bridge failure. However, based on the allegations in the complaint, the lawsuit will likely open discovery of all Rhode Island Department of Transportation’s records related to the Washington Bridge back to its initial design in the mid-1960s. Such documents could undermine the broad allegations in the State’s complaint for the defendants who choose to fight rather than settle quickly. The bridge will be demolished soon, and the recently issued initial solicitation to design and construct a new bridge has received no bids. This should come as no surprise, given the highly publicized and political nature of the lawsuit and the broad accusations against all the companies connected to the bridge in the past. Whatever the State hopes to recover in this lawsuit may be offset by the risk priced into the new project... if anyone ever bids on it.    

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