Payment Provisions in Construction Contracts: Mitigating Risk of Nonpayment in a Volatile Market
Stop Work, Paid-When-Paid, Paid-If-Paid, and More; Jurisdictional Limitations; Drafting and Enforcement Considerations
Recording of a 90-minute CLE video webinar with Q&A
This CLE webinar will guide construction counsel on best practices when negotiating and drafting contractual payment provisions for contractor, subcontractor, or supplier clients in the construction industry. The panel will discuss stop work provisions and highlight key differences between paid-if-paid (PIP) and paid-when-paid (PWP) clauses as well as address jurisdictional concerns. The panel will also provide an overview of nonpayment enforcement remedies under these contractual provisions as well as others such as under general contract and common law.
- Overview of construction payment provisions
- Prompt payment laws
- Stop work clause
- PIP vs. PWP clauses
- Jurisdictional considerations
- State law update
- Case law update
- Possible effects on other remedies
- Nonpayment enforcement remedies
- Stop work, PIP, and PWP
- General contract law
- Common law
- Mechanics lien
- Prompt payment laws
- Best practices for mitigating the risk of nonpayment
The panel will review these and other important considerations:
- What are the differences between stop work, PIP, and PWP provisions and what are key drafting considerations for each?
- What are jurisdictional considerations for PIP and/or PWP provisions in contracts?
- How do contractual payment provisions interact and possibly affect other remedies such as mechanics liens?
- What other nonpayment enforcement mechanisms are available to counsel outside of stop work, PIP, and PWP provisions?
Scott D. Cahalan
Smith Gambrell & Russell
Mr. Cahalan has substantial experience representing owners, contractors, subcontractors, engineers, architects,... | Read More
Mr. Cahalan has substantial experience representing owners, contractors, subcontractors, engineers, architects, suppliers, manufacturers and vendors in connection with construction, commercial and other business matters. His practice primarily consists of drafting and reviewing construction contracts, providing advice during construction and construction litigation, arbitration and mediation. Mr. Cahalan was the primary drafter of the Associated Owners and Developers’ AOD 2002 – Standard Form of Agreement Between Owner and Contractor Where the Price Is Fixed or Lump Sum, and the Associated Owners and Developers’ AOD 2003 – Standard Form of Agreement Between Owner and Contractor for Work on a Cost Plus Fee Basis With a Guaranteed Maximum Price. He has also given numerous seminars throughout the U.S. and Europe concerning construction contracts, implied contract obligations, claims, green building, construction insurance, and mechanics lien law. Since 2010, Mr. Cahalan has been an instructor at the Georgia Institute of Technology where he teaches Design and Construction Law.Close
Mr. McNamara’s practice areas include construction law, employment law, suretyship, trial practice and insurance... | Read More
Mr. McNamara’s practice areas include construction law, employment law, suretyship, trial practice and insurance defense. He has tried numerous cases in state and federal courts before juries and judges and has argued before the Supreme Judicial Court of Massachusetts, the Appeals Court of Massachusetts, and the United States Courts of Appeal. The Martindale-Hubbell National Law Directory has awarded Mr. McNamara an AV Rating, the highest rating for legal ability and professional ethics. He has also been named a New England Super Lawyer by Law & Politics and Boston Magazine; this designation is limited to the top 5% of attorneys in New England. Mr. McNamara has been an invited speaker at the Construction Industries in Massachusetts, Associated Builders and Contractors of Massachusetts, Massachusetts Electrical Contractors Association, and Massachusetts Continuing Legal Education.Close
William D. Wickard
Mr. Wickard concentrates his practice on construction and commercial litigation along with negotiating and drafting... | Read More
Mr. Wickard concentrates his practice on construction and commercial litigation along with negotiating and drafting construction contracts. He has worked on a wide variety of projects (both international and domestic), including oil and gas, offshore oil production facilities, power plants, manufacturing plants, railroads, solar power facilities, wind farms, water treatment plants, steel mills, dams, and health care facilities. Mr. Wickard has been involved in all phases of litigation in a number of state and federal courts, including jury trials, bench trials, injunction and TRO proceedings. He also has handled numerous appeals in several different state and federal jurisdictions. Mr. Wickard also has significant experience with arbitration proceedings. Mr. Wickard has also drafted and negotiated numerous construction contracts, including EPCs, subcontracts, design contracts, and supply contracts, for many different domestic and international projects. Mr. Wickard also represents clients in connection with public procurement issues and has extensive experience in all phases of bid protest proceedings throughout the country.Close