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Articles by Matthew DeVries
Your Price Tells a Story: What a Tennessee AG Opinion Teaches Contractors about Public Contracting
Every contractor has seen the number that makes the room go quiet. Two proposals are relatively close, and the third is 30 percent lower. The first reaction usually isn’t, “Great. We just saved a bunch of money.” It is something much more skeptical: What did they miss? Maybe nothing. Maybe that contractor found a better approach, secured better pricing, or simply wants the work.
Your Price Tells a Story: What a Tennessee AG Opinion Teaches Contractors about Public Contracting
Every contractor has seen the number that makes the room go quiet. Two proposals are relatively close, and the third is 30 percent lower. The first reaction usually isn’t, “Great. We just saved a bunch of money.” It is something much more skeptical: What did they miss? Maybe nothing. Maybe that contractor found a better approach, secured better pricing, or simply wants the work.
The Drawing Changed. Did You Catch It? A Hard Lesson for Contractors About Revised Plans
Every contractor has seen it. A revised drawing hits your inbox. You open the sheet, look for the clouds, figure out what changed, and move on. But what if something changed outside the cloud? That seemingly simple question became a very expensive problem in Young Contracting/SE, Inc. v. Pitt Excavating, LLC, (Oct. 30, 2026), a recent Tennessee Court of Appeals decision involving a general contractor and its excavation subcontractor.
The Drawing Changed. Did You Catch It? A Hard Lesson for Contractors About Revised Plans
Every contractor has seen it. A revised drawing hits your inbox. You open the sheet, look for the clouds, figure out what changed, and move on. But what if something changed outside the cloud? That seemingly simple question became a very expensive problem in Young Contracting/SE, Inc. v. Pitt Excavating, LLC, (Oct. 30, 2026), a recent Tennessee Court of Appeals decision involving a general contractor and its excavation subcontractor.
Your Construction Contract Won’t Always Save You From a Bad Project Record
Construction contracts are full of protections. No-damage-for-delay clauses. Consequential damage waivers. Rights to supplement a subcontractor’s work. Broad scheduling provisions. But a recent Tennessee construction case provides an important reminder: the best contract in the world may not save you from bad project facts. In Commercial Painting Company, Inc. v. The Weitz Company, LLC (TN Ct. App. Oct.
Construction Expert and Judge Living in the Same Hood Is Not Grounds For Recusal | JD Supra
In a recent Tennessee Court of Appeals decision, Nowaczyk v. Daniels Construction (Nov. 4, 2025), a contractor tried to disqualify the trial judge because the judge happened to live in the same neighborhood as a potential expert witness for the homeowners. The court’s response? Proximity isn’t prejudice. The dispute started when homeowners sued Daniels Construction for allegedly botched remodeling work.
California's Fair Payment Act: What Every Owner, Developer, and Contractor Should Know About SB 440
While most states have enacted various forms of prompt payment laws for construction projects, California Senate Bill 440, known as the Private Works Change Order Fair Payment Act, marks a pivotal change in how payment obligations related to change orders are handled on private construction projects. Signed into law on October 10, 2025 by Governor Newsom, its implementation will affect owners, developers, contractors, and subcontractors alike.
When Logic Doesn’t Matter: Why ‘Irrational’ Isn’t a Ground to Overturn an Arbitration Award in Tennessee
Arbitration has long been viewed as a faster, more efficient alternative to litigation. But anyone involved in construction disputes today knows that is not always the case. The process can be just as costly, sometimes taking as long as a court case. Yet one thing remains consistent, and it is the most important point for everyone in the construction process to understand before signing an arbitration clause: once an arbitrator decides, that decision is almost always final.
Tenn. Court of Appeals Finally Clarifies Contractor Licensing Laws, Holding An "Underlicensed" Contractor Is Violation of Tennessee's Consumer Protection Act
The title of this post says it all. No need for a catchy story about my kids or a play on words. In what had been an often debated issue in trial courts across Tennessee, the Court of Appeals recently weighed in on the issue of whether an underlicensed contractor (one who contracts beyond the monetary limitation of its license) can form the basis of a claim under the Tennessee Consumer Protection Act (“TCPA”), Tenn. Code Ann. §§ 47-18-101 et seq. The Setup. In Zelenik v. Crowell Homebuilding LLC, (Aug.
Labor Shortages Overnight? What Every Contractor Needs to Know About ICE Raids and Schedule Impacts
The headlines are hard to miss: “Construction work force taking a hit amid ICE operations in Middle Tennessee” and “Tennessee ranks near the top for ICE arrests” For contractors and subcontractors, these are more than political talking points. It is a business risk that can hit the bottom line overnight. Labor Disruptions on Site. An ICE raid occurs when U.S. Immigration and Customs Enforcement (ICE) agents arrive at a construction site to investigate the immigration status of workers.
Backpacks, Broadway, and Building Restrictions: A Legal Reminder
A few weeks ago, I took two of my girls to New York City for a quick overnight trip to see two Broadway shows. My rule for packing was simple: one backpack each. No rolling bags, no extras. We were walking the city, checking into a hotel, and going straight to the shows. The plain meaning of my instructions were clear: one bag per person. That’s exactly how the Tennessee Court of Appeals handled a recent case, Killen v. Boardman (Aug. 2025).
When I draft and negotiate construction contracts—whether representing contractors, subcontractors, or owners—there’s always one provision that seems to get special attention: the waiver of consequential damages. For good reason. It can significantly impact both parties’ exposure if things go sideways on a project. So what are “consequential damages,” and why do they matter? Consequential damages are losses that don’t flow directly from a breach, but arise as a secondary result of it.
Insurance and Reconstruction: A Guide for Property Owners Facing Wildfire Aftermath and Other Disasters | JD Supra
“This is the worst-case scenario to prepare for,” said Kristan Lund, a meteorologist with the National Weather Service, when talking about the recent wildfires in Los Angeles and the subsequent heavy rainfall. The aftermath of debris, mudslides and flooding has left a path of devastation, destroying both commercial and residential properties, displacing thousands of residents, and making the reconstruction efforts challenging.
“This is the worst-case scenario to prepare for,” said Kristan Lund, a meteorologist with the National Weather Service, when talking about the recent wildfires in Los Angeles and the subsequent heavy rainfall. The aftermath of debris, mudslides and flooding has left a path of devastation, destroying both commercial and residential properties, displacing thousands of residents, and making the reconstruction efforts challenging.
OMG! Bruh 86s PLAs Under CICA—It's a "W" for Fed Contractors! | Open Legal Blog Archive
I am sure that my kiddos would understand that title, so shoot me an email if you get it! In a major win for open competition in federal contracting, the United States Court of Federal Claims ruled against the government’s mandate requiring Project Labor Agreements (PLAs) on large-scale federal construction projects. The decision, issued in MVL USA, Inc. et al. v.
Blueprint for Change: How the Construction Industry Should Respond to the FTC’s Ban on Noncompetes | JD Supra
In a groundbreaking move aimed at fostering fair competition and empowering workers, the Federal Trade Commission (FTC) issued a final rule last week to ban noncompete agreements nationwide. This ruling may carry profound implications for the construction industry, prompting construction businesses to reassess their practices and ensure compliance while maintaining competitiveness. Let’s explore how construction companies, large and small, can navigate this regulatory shift effectively.
Blueprint for Change: How the Construction Industry Should Respond to the FTC’s Ban on Noncompetes
In a groundbreaking move aimed at fostering fair competition and empowering workers, the Federal Trade Commission (FTC) issued a final rule last week to ban noncompete agreements nationwide. This ruling may carry profound implications for the construction industry, prompting construction businesses to reassess their practices and ensure compliance while maintaining competitiveness. Let’s explore how construction companies, large and small, can navigate this regulatory shift effectively.
Contract Void Ab Initio: Key Insights into the KBR vs. Corps of Engineers Affirmative Defense | JD Supra
In a recent Board decision dated December 13, 2023, the United States Army Corps of Engineers sought to amend its answer in the case of APPEALS OF – KELLOGG BROWN & ROOT SERVICES, INC., under Contract No. W912GB-13-C-0011. The proposed amendment introduces an affirmative defense, contending that Kellogg Brown & Root Services, Inc. (KBR) made material misrepresentations in its proposal, rendering the fully-performed contract void ab initio.
Contract Void Ab Initio: Key Insights into the KBR vs. Corps of Engineers Affirmative Defense
In a recent Board decision dated December 13, 2023, the United States Army Corps of Engineers sought to amend its answer in the case of APPEALS OF – KELLOGG BROWN & ROOT SERVICES, INC., under Contract No. W912GB-13-C-0011. The proposed amendment introduces an affirmative defense, contending that Kellogg Brown & Root Services, Inc. (KBR) made material misrepresentations in its proposal, rendering the fully-performed contract void ab initio.
Unlocking the Potential of AI and Chat GBT in Construction Management | JD Supra
The construction industry is one of the most complex and challenging sectors. Projects can be highly demanding and require a significant amount of planning and coordination to complete...
Unlocking the Potential of AI and Chat GBT in Construction Management
The construction industry is one of the most complex and challenging sectors. Projects can be highly demanding and require a significant amount of planning and coordination to complete successfully. However, with advancements in technology, specifically the use of artificial intelligence (AI) and chat GBT, the construction industry can experience a transformation in how it operates. One of the significant challenges in construction projects is the management of data.
Unlocking the Potential of AI and Chat GBT in Construction Management
The construction industry is one of the most complex and challenging sectors. Projects can be highly demanding and require a significant amount of planning and coordination to complete successfully. However, with advancements in technology, specifically the use of artificial intelligence (AI) and chat GBT, the construction industry can experience a transformation in how it operates. One of the significant challenges in construction projects is the management of data.
Nailing Social Media: The Key to Generating Leads for Construction Companies | JD Supra
Social media has become a powerful tool for small to medium-sized construction companies to generate leads for both residential and commercial projects. With over 3 billion people using social media worldwide, there is a huge opportunity for construction companies to reach potential customers and promote their services. Following are some tips for contractors to use social media to generate leads and improve their revenue targets in 2023.
Nailing Social Media: The Key to Generating Leads for Construction Companies
Social media has become a powerful tool for small to medium-sized construction companies to generate leads for both residential and commercial projects. With over 3 billion people using social media worldwide, there is a huge opportunity for construction companies to reach potential customers and promote their services. Following are some tips for contractors to use social media to generate leads and improve their revenue targets in 2023.
It’s a Jolly Time of the Year: 5 Tips for Dealing with Construction Labor Issues During the Holidays | JD Supra
It’s that time of year again – the holiday season is upon us, and for those in the construction industry, that can mean a few extra challenges when it comes to maintaining efficiency on the job site. Here are five best practices for dealing with labor during the holiday season: Communicate early and often: Make sure to clearly communicate any changes to the schedule or workload to your team as early as possible.
It's a Jolly Time of the Year: 5 Tips for Dealing with Construction Labor Issues During the Holidays
It’s that time of year again – the holiday season is upon us, and for those in the construction industry, that can mean a few extra challenges when it comes to maintaining efficiency on the job site. Here are five best practices for dealing with labor during the holiday season: Communicate early and often: Make sure to clearly communicate any changes to the schedule or workload to your team as early as possible.
Home Builders and Developers Beware: SC Supreme Court Beats Up Hybrid Arbitration Clauses Mercilessly | JD Supra
[guest-author: Ned Nicholson] Today’s guest post is by one of my favorite construction lawyers and friends, Burr partner Ned Nicholson in our Columbia, SC office. Ned regularly represents clients in construction defect and compensation claims, manufacturer/dealer disputes, and insurance coverage lawsuits. He is also a South Carolina certified mediator.
Home Builders and Developers Beware: SC Supreme Court Beats Up Hybrid Arbitration Clauses Mercilessly
Today’s guest post is by one of my favorite construction lawyers and friends, Burr partner Ned Nicholson in our Columbia, SC office. Ned regularly represents clients in construction defect and compensation claims, manufacturer/dealer disputes, and insurance coverage lawsuits. He is also a South Carolina certified mediator. Ned can be reached at nnicholson@burr.com or (803) 799-9800.
Gru Was Wrong About the Money: Court Concludes that Lender Owes Contractor “Contractually, Factually and Practically” | JD Supra
This weekend was all about The Rise of Gru. I love Gru so much that when my children ask for money, my best Gru-like voice belts back: “Now, I know there have been some rumors going around that the bank is no longer funding us….In terms of money, we have no money.” And that’s precisely what many lenders say on distressed projects when the owner fails to make final payment and the contractor looks to the bank for funding: “We have no money for you contractor!” In BCD Associates., LLC v.
Gru Was Wrong About the Money: Court Concludes that Lender Owes Contractor "Contractually, Factually and Practically"
This weekend was all about The Rise of Gru. I love Gru so much that when my children ask for money, my best Gru-like voice belts back: “Now, I know there have been some rumors going around that the bank is no longer funding us….In terms of money, we have no money.” And that’s precisely what many lenders say on distressed projects when the owner fails to make final payment and the contractor looks to the bank for funding: “We have no money for you contractor!” in BCD Associates., LLC v.
More Than Meets the Eye: TN Court Finds Arbitration Agreement in Employee Handbook Non-Binding | JD Supra
Excuse the eye patch, as I just had retina surgery yesterday. I am surprised at how different the world looks with only one eye to focus—from the depth of the stairway, to the water flowing from the sink, to the words flying out from the computer screen. In other words, there is more than meets the eye, a problem that many employers and employees face when a dispute arises. In Mankin Media Systems, Inv. v. Timothy Crowder, No. 19CV-48300W (Jun.
More Than Meets the Eye: TN Court Finds Arbitration Agreement in Employee Handbook Non-Binding
Excuse the eye patch, as I just had retina surgery yesterday. I am surprised at how different the world looks with only one eye to focus—from the depth of the stairway, to the water flowing from the sink, to the words flying out from the computer screen. In other words, there is more than meets the eye, a problem that many employers and employees face when a dispute arises. In Mankin Media Systems, Inv. v. Timothy Crowder, No. 19CV-48300W (Jun.
When is a Contractor’s Termination for Default Proper? When it Does Bad Things! | JD Supra
Sometimes you “do” bad things. Sometimes you “look like” you do bad things. Just look at the difference between Bad-boy Jack and my youngest daughter, who just “looks like” she’s up to no good. In the world of construction contracting, both can get in you in trouble, including a termination for default of performance. Appeals of Industrial Consultants, Inc. d/b/a W. Fortune & Company, ASBCA No. 59622 (2017) involved a construction contract to upgrade an HVAC system at a facility in New Hampshire.
Feeling Rejected? MA Court Construes for the First Time the Provisions of the Prompt Pay Act | JD Supra
In life, rejection is often hard to swallow. In construction, that rejection can sometimes amount to millions of dollars. A Massachusetts court recently held that an owner’s rejection of the contractor’s payment applications was not properly certified and, thus, violated the state’s Prompt Pay Act. In Tocci Building Corp. v. IRIV Partners, LLC, (App. Ct. Mass.
Feeling Rejected? MA Court Construes for the First Time the Provisions of the Prompt Pay Act
In life, rejection is often hard to swallow. In construction, that rejection can sometimes amount to millions of dollars. A Massachusetts court recently held that an owner’s rejection of the contractor’s payment applications was not properly certified and, thus, violated the state’s Prompt Pay Act. In Tocci Building Corp. v. IRIV Partners, LLC, (App. Ct. Mass.
Slow As A Turtle? Florida Court Finds “No Damages for Delay” Clause Has Limits | JD Supra
My commute home last night took longer than usual. It was not excessive traffic, an accident, or a stalled car. Rather, the cause of my delayed commute was a turtle: one single turtle crossing the road, holding up about 30 cars for what seemed like an eternity. (Never mind the fact that no one got out of their car to help the little guy!) When we think of delays on a construction project, the first inquiry is to identify the turtle—the one party holding up progress or causing the delay.
Tongue Twister: Commander Closes Construction Site for COVID and Contractor Can’t Recover Contract Costs | JD Supra
Last month, the Armed Services Board of Contract Appeals held that a public contractor could not recover $100k in construction costs incurred following the government’s decision to close down a base in Tennessee due to COVID-19. APTIM Federal Services, LLC (ASBCA No. 62982) sought to recover $99,076 in operational costs incurred for a construction contract during a two-month period in 2020. The commander of Arnold Air Force Base closed the base in order effort to mitigate the spread of COVID-19.
Slow As A Turtle? Florida Court Finds "No Damages for Delay" Clause Has Limits
My commute home last night took longer than usual. It was not excessive traffic, an accident, or a stalled car. Rather, the cause of my delayed commute was a turtle: one single turtle crossing the road, holding up about 30 cars for what seemed like an eternity. (Never mind the fact that no one got out of their car to help the little guy!) When we think of delays on a construction project, the first inquiry is to identify the turtle—the one party holding up progress or causing the delay.
Tornadoes and Other Catastrophic Events Can Cripple a Construction Project—And How to Respond | JD Supra
Last month, a construction worker died as a storm swept through a construction site in Lebanon, Indiana. The preliminary investigation determined that the contractor was on an elevated platform while working on an industrial warehouse that was under construction. The man and other workers were in the process of stopping due to approaching thunderstorms. While the platform was being lowered, strong winds knocked it over, leading to the man’s death.
You Can’t Treat Construction Claims Like Your Grandkids | JD Supra
I have seven children, and two of them have flown the coop. I also have two grandchildren who are ripe for spoiling. You see, grandchildren are a different type of kid, which means I get to treat them different than the kiddos living under my roof. In construction, however, some courts have held that the type of contract delivery method do not change the treatment of the other contract clauses, such as the applicability of a differing site conditions clause. Appeal of John C.
You Can't Treat Construction Claims Like Your Grandkids
I have seven children. and two of them have flown the coop. I also have two grandchildren who are ripe for spoiling. You see, grandchildren are a different type of kid, which means I get to treat them different than the kiddos living under my roof. In construction, however, some courts have held that the type of contract delivery method do not change the treatment of the other contract clauses, such as the applicability of a differing site conditions clause. Appeal of John C.
Virginia Joins 11 Other States Prohibiting Pay-If-Paid Clauses in Construction Contracts | JD Supra
If you have Googled, “Virginia Pay If Paid” or “Virginia Pay When Paid” or “Pay if Paid Enforceable” or “best construction lawyer ever“, then you likely have found your way here (that last one is mere puffery). Let’s cut to the chase—Virginia has joined 11 other states that have expressly prohibited “pay if paid” clauses in construction contracts. If you have construction projects in Virginia, then read on. If you want know whether your state prohibits these clauses, then read on.
Broad Form Lien Waivers No Longer Part of the Game in North Carolina | JD Supra
North Carolina Avenue is one of the hottest properties in Monopoly, says most of my kids. And if you are a contractor or subcontractor in North Carolina, the law makers recently afforded you some additional protections to your lien rights.
Broad Form Lien Waivers No Longer Part of the Game in North Carolina
North Carolina Avenue is one of the hottest properties in Monopoly, says most of my kids.
Pre-Bid Documents and Estimates Can’t Be Hidden Behind the Curtain in Disputed Delay Claims | JD Supra
With the kids off for spring break this week, we nestled around the big screen for a family favorite. “The Great Oz has spoken! . . . Pay no attention to that man behind the curtain!” My littlest chuckled. Just like the old man who couldn’t hide behind the curtain in The Wizard of Oz, contractors and subcontractors should be reminded that pre-bid documents, such as draft proposals and bid estimates, can’t be hidden behind the curtain of “trade secrets”.
Pre-Bid Documents and Estimates Can't Be Hidden Behind the Curtain in Disputed Delay Claims
With the kids off for spring break this week, we nestled around the big screen for a family favorite. “The Great Oz has spoken! . . . Pay no attention to that man behind the curtain!” My littlest chuckled. Just like the old man who couldn’t hide behind the curtain in The Wizard of Oz, contractors and subcontractors should be reminded that pre-bid documents, such as draft proposals and bid estimates, can’t be hidden behind the curtain of “trade secrets”.
That’s A Goocher: SD Court Finds Enforceable Construction Contract Despite Lack of Time Component | JD Supra
What’s a goocher? If you saw the movie, Stand By Me, then you know exactly what I mean. And there are times when parties to a construction contract face a goocher. Here’s what I mean… In J. Clancy, Inc. v. Khan Comfort, LLC, the Supreme Court of South Dakota held that a missing time element in a construction contract did not invalidate the contract.
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