OTMK's partners formed OTMK to cater to the specific needs of the construction industry. The attorneys at OTMK have almost 50 years of collective experience providing construction legal services to a wide variety of industry players that include contractors, subcontractors, public and private owners, developers, design professionals, and sureties. Our team has worked on a broad range of projects that includes commercial and industrial buildings, schools, residential developments, hospitals, highways, bridges, power plants, pipelines, restoration projects, and wastewater treatment plants.
Our mission is to provide a creative, proactive and business-minded approach to address our clients’ needs both effectively and efficiently. Our firm focuses on a variety of services at all stages of construction.
PRIOR TO CONSTRUCTION
OTMK's lawyers reduce the risk for contractors, owners and other construction clients by taking necessary steps to protect their interests at the front-end of a project. These services include:
Contract Drafting and Negotiation
The lawyers at OTMK work with project owners, general contractors, and subcontractors to draft and negotiate a variety of construction contracts, including general contracts, subcontracts, purchase orders, credit agreements, design agreements, design-build contracts, and joint venture agreements. In addition to drafting contracts “from scratch” that fit the specific needs of our clients, the OTMK lawyers are also well-versed in most of the standard industry contract documents, including AIA Contracts, Consensus Docs, and DBIA contracts. When drafting contracts and advising its clients, OTMK focuses on protecting its clients from protracted litigation, while also meeting their business needs.
Preparation of Bid Documents
OTMK assists both public and private owners with the preparation of bid documents, including Requests for Proposals and the prequalification of contractors. The lawyers at OTMK are well-versed in public bidding laws, including the Subcontractor and Subletting Fair Practices Act, licensing laws, prompt payment laws, and those laws specific to cities, counties, school districts, and other agencies. OTMK works with owners to prepare clear bidding documents, reducing the likelihood of bid disputes and increasing the likelihood of a successful project.
Advice and Assistance With Contractors' Licenses
OTMK attorneys assist general contractors and subcontractors with obtaining a California contractor's license and with questions regarding license classification.
Bid Protests
The lawyers at OTMK have drafted and responded to countless bid protests before the state, including Caltrans, and local entities. OTMK lawyers often appear before the board of the awarding agency to argue on behalf of their clients. We also assist public entities to determine whether a low bidder is responsive to the bid documents or responsible.
DBE Good Faith Effort Disputes and Advice
OTMK's lawyers advise clients with respect to the specific requirements relating to the use of DBE subcontractors and Good Faith Efforts to meet DBE Goals, including whether a DBE subcontractor is meeting a “commercially useful function.” OTMK also works with contractors to dispute findings regarding the failure to meet Good Faith Efforts and argues on behalf of contractors at appeal hearings.
DURING CONSTRUCTION
When issues arise during construction of the project, the attorneys at OTMK are routinely retained to evaluate and advise contractors, subcontractors, owners and design professionals with respect to all types of construction-related matters, including the following:
Delays, Acceleration and Liquidated Damages
When a project is delayed, a myriad of contractual clauses dictate whether and how much a contractor is to be compensated. The lawyers at OTMK advise their clients during the project as to the impact of such clauses and whether the delays are excused, unexcused, compensable or non-compensable. OTMK lawyers also assist with change orders, negotiate with other project participants, and protect the interests of their clients in the event a resolution is not reached during construction.
Differing Site Conditions
When an unexpected site condition is encountered, OTMK attorneys assist their clients with determining whether such a condition is a “differing site condition” and, if so, the changes to the contract amount and time that may be due. The lawyers at OTMK also provide advice with respect to the various notice provisions in the contract to make sure meritorious claims are not lost due to technicalities.
Defects in Plans and Specifications
A defect in plans and specifications can be costly and can delay construction of a project. The team at OTMK assist owners, contractors, and design professionals to work through the defective plans or specifications to keep the project on schedule and to protect the rights of its clients.
Extra and Changed Work
OTMK's attorneys work with their clients to determine whether work is “extra” or “changed” under the contract and, if so, what compensation may be due. The lawyers at OTMK also negotiate with project participants to achieve the best results for their clients.
Contract Termination
Most construction contracts allow for one or both parties to terminate the contract for convenience and for default. When termination of the contract appears likely, the attorneys at OMTK negotiate proper termination terms and compensation and assist with the transition to a new project team, if necessary. OTMK’s lawyers also work with sureties to determine whether the surety is liable under the terms of the performance bond and the relative obligations of the surety, the contractor and the owner.
Subcontractor Substitution
Under the California’s Subletting and Subcontracting Fair Practices Act, a general contractor on a public works project may only substitute a listed subcontractor in certain situations. The lawyers at OTMK advise their clients to determine whether substitution is proper and, if so, how to properly substitute a subcontractor. If warranted, OTMK’s attorneys also seek payment from the subcontractor’s performance or payment bond sureties.
FOLLOWING CONSTRUCTION
In the event a dispute cannot be resolved short of litigation, OTMK offers a team of litigators with experience handling public and private construction disputes in all forums, including federal and state courts, administrative tribunals, and arbitration. The lawyers at OTMK have experience litigating matters involving, among other things:
Mechanic’s Liens
When a contractor has not been paid, a mechanic’s lien is a powerful tool. However, a number of requirements must be met in order to record and enforce the lien properly. The lawyers at OTMK are well-versed with the various nuances of mechanic’s lien law and have significant experience foreclosing on and defending mechanic’s liens in court.
Stop Payment Notices
A Stop Payment Notice, when properly served, requires an owner or construction lender to withhold payment to the general contractor or owner, respectively. OTMK’s attorneys provide advice to their clients to determine whether a Stop Payment Notice is warranted, timely, and proper. When the time is right, the lawyers at OTMK file suit to enforce the Stop Payment Notice.
Payment and Performance Bonds
The vast majority of California public works projects, and many private projects, require contractors to obtain both performance and payment bonds to guarantee that the contractor perform the work in accordance with the contract and pay its subcontractors and suppliers. In addition, contractors oftentimes purchase bonds to release a Mechanic’s Lien or a Stop Payment Notice. The lawyers at OTMK have years of experience prosecuting and defending claims against surety bonds, including Performance Bonds, Payment Bonds, Subdivision Bonds, Mechanic’s Lien Release Bonds, and Stop Payment Notice Release Bonds.
The False Claims Act
A violation of the California False Claims Act or the Federal False Claims Act brings significant exposure to hefty penalties. The lawyers at OTMK work with clients during construction to ensure compliance with the False Claims Act and have successfully defended and prosecuted claims made under the False Claims Act.
Differing Site Conditions
When a differing site condition is encountered during construction and the parties are not able to resolve the damages and delays incurred, a lawsuit often follows. OTMK’s attorneys dig into the details and work with geotechnical and other experts to provide the best possible representation of their clients in state and federal court and in arbitration.
Payment Disputes
Payment disputes are one of the most common reasons that clients call OTMK. The lawyers at OTMK are focused on helping owners, contractors, subcontractors, and suppliers obtain the amounts they are due and are knowledgeable of all resources available, including mechanic’s liens, stop payment notices, payment bond claims, and prompt payment penalties.
Prompt Payment Penalties
Embedded in various California statutes are a number of laws that require owners, contractors, and subcontractors to make prompt payments. Failure to comply with the Prompt Payment Statutes can result in large penalties. The lawyers at OTMK have leveraged these statutes to the benefit of our clients and defended unwarranted claims based on the Prompt Payment Statutes in a variety of courts.
Termination for Default
Terminating a contractor for default is the most traumatic event on a project, with significant legal implications. When a contractor is terminated for default, it impacts their ability to obtain bonds and bid on public works, and adversely affects their reputation. The lawyers at OTMK are experienced with the ins and outs of default terminations and have vigorously prosecuted and defended such terminations, negotiated workouts, and successfully converted default terminations into terminations for convenience.
The Miller Act
Federal Construction Projects are governed by the Miller Act. The Miller Act imposes certain bond requirements and provides for deadlines to file suit that are different from California Public Works Construction Projects or Private Projects. OTMK’s attorneys have years of experience advising clients with respect to the requirements of the Miller Act and in filing suit in Federal Courts to recover payment due.
Delays and Acceleration
Aside from Payment Disputes, claims for delays and acceleration are the most common construction claims handled by OTMK. The lawyers at OTMK routinely work with scheduling and other experts to unravel complicated delay disputes and have extensive experience in claims for delay, acceleration, disruption and productivity impacts, home office overhead, and liquidated damages.
ALTERNATIVE DISPUTE RESOLUTION
Generally, the parties involved in construction enter into projects in good faith, but, unfortunately, it may be necessary to resolve conflict via legal action. In addition to providing traditional transactional and litigation services, OTMK’s Bob O’Connor offers mediation, arbitration and related ADR services for construction disputes.
Bob has more than 40 years of experience practicing as a construction attorney and has been mediating and arbitrating construction disputes for more than 25 years. For more information, read more about Bob.
