March 2017

Curtis W. Martin, a partner in the firm's Houston office, authored an article in the AGC of America Newsletter, Volume 3, Issue 1, February 2017. The article discusses the question of "who is responsible for defective design" under Texas law which has often been debated using either Lonergan (Contractor) or Spearin (Owner). However, the recent Fifth Circuit opinion in INET offers a different view on this issue, "instead of focusing on which party was responsible for overall design, the Fifth Circuit focused on the parties' attempts (or failures) to resolve disputes on how to deal with the design defect," taking the focus off of who's to blame and identifying how to fix the problem.

Alexandra Busch authored an article in Under Construction, the ABA Forum on Construction Law Newsletter, Volume 18, Number 3. The article titled "Contractors Beware: Complete Work Directed by CORs at Your Own Risk" highlights the fact that contracting officers have actual and implied actual authority. Understanding the difference between the two types of authority can help contractors to manage risks and expectations when dealing with a government agent/representatives. The article provides the following best practices to help contractors manage risks and expectations: (1) "When the contractor receives direction from a government agent, it should determine whether the directive is within that agent’s authority." (2) "contractors should avoid relying on the narrow exceptions to actual authority, such as the emergency exception." (3) "contractors should not rely upon casual dealings and prior governmental course of conduct, especially in a situation in which the government has warned the contractor to wait until the execution of a formal agreement."

Peckar & Abramson is pleased to announce that founding partner Robert S. Peckar and partner Michael S. Zicherman served as contributing editors of Getting the Deal Through—Construction 2017. The attorneys co-authored the introduction to Getting the Deal Through, Construction 2017 as well as the chapter titled United States, published by Law Business Research, Ltd. Getting the Deal Through—Construction provides members of the construction industry and construction related legal and business providers with special insight into key industry issues in twenty-six (26) jurisdictions worldwide.

Reproduced with permission from Law Business Research Ltd. This article was first published in Getting the Deal Through: Construction 2016, (published in July 2015; contributing editors: Robert S Peckar and Michael S Zicherman, Peckar & Abramson PC) For further information please visit

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February 2017

Frank M. Rapoport, a partner in the firm's New York office and head of the firm’s P3 practice was quoted as a source in a story entitled "Trump's Public Projects will Depend on Private Billions" which published February 24, 2017 in the Philadelphia Inquirer. Mr. Rapoport commented on the source of possible private investors and financiers as well as the need for states to adopt P3 laws making it easier for private investors to pump money into projects, and get it back with interest over the years, under terms they expect they can find profitable. Mr. Rapoport is also Chief Strategy Adviser to the Association for the Improvement of American Infrastructure.

Frank M. Rapoport, a partner in the firm's New York office, authored an article in the Associated Pennsylvania Constructors Publication, Volume 95, Issue 4, Winter 2017, titled "Determining the Role of P3s in Infrastructure Investment". The article discusses President Donald J. Trump's vision to transform America's infrastructure and the questions being asked in the contracting industry regarding his administration's initiatives. Mr. Rapoport also discusses the President's key issues which include infrastructure investment to strengthen the U.S. economic platform, make America more competitive, create millions of jobs, increase wages for American workers, and reduce the costs of goods and services for American consumers.