Construction Law: The Unique Risks of State Contracting Work

, The Connecticut Law Tribune

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Based on these public policies, even the most heinous offenses are subject to time limitations. The benefits of time limitations would apply in the public construction context as well. Documentary records are too costly to preserve indefinitely. Witnesses disappear. Memories fade. The resolution of stale claims is more likely to be based disproportionately on litigation avoidance rather than on merit. State policy should not rely on nuisance litigation.

Businesses would be unwise to ignore the significant consequences and risks of performing public work. However, it is impossible to accurately value the risk of litigation exposure for an indefinite period of time. No practical document retention policy can account for eternity. A merger with a state contractor may have hidden risks. For any professional (architect, engineer, accountant, lawyer, etc.) performing services for the state, adequate long-term professional liability coverage after retirement may be impossible to obtain.

Other states, including states in the Northeast such as New York, Massachusetts and New Jersey, have adopted statutes of limitations that apply in general to claims by the state or specifically to claims by the state arising out of public projects. To date, Connecticut officials have denied the need to move toward a more level playing field. Unless or until Connecticut finds its way out of the economic downturn, the state may still be able to find ample contractors and designers willing to bear the disproportionate and unique risks of a public construction project. In 2006 and 2007, there were not enough contractors for the construction projects available and prices skyrocketed. As financial conditions improve in neighboring states and throughout the country, contractors and designers may turn away from public work in Connecticut. Perhaps then the legislature will act to correct this unfair situation.•

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