2025 Articles

Affirmative Action and the Vagaries of the Fourteenth Amendment By Margery Newman February 2025 Forty-four years ago, the United States Supreme Court determined that Congress could “set aside” 10 percent of all federal funds earmarked for local public works for use by minority business enterprises (“MBE”). Today, the Supreme Court considers the employment of race as an anathema to the Fourteenth Amendment.

Become an Illinois Bar Foundation Champion By Jessica R. Durkin December 2025 At least twice a year at ISBA Annual and Midyear Meetings, we are pitched by colleagues and the Illinois Bar Foundation to become a “Champion.” But what is a Champion really, and what’s in it for us?

Bid Mistakes, Bid Withdrawals, and What to Do Next By Mark B. Gryzmala January 2025 The complexities of bid mistakes and withdrawals can often lead to significant legal and financial consequences. Whether you are a seasoned contractor or a novice in the industry, understanding these challenges is crucial.

Changes to the Illinois Public Adjuster Act By Mark B. Grzymala November 2025 Updates to the Illinois Public Adjuster Act, effective January 1, 2024, impact various aspects of public adjusting, including expanded definition and scope, licensing requirements, contractual agreements, and fee structures. Learn what this may mean for you and your business.

Construction Law Section Members Attend the Annual Meeting in Lincolnshire September 2025 Key moments featuring the Association’s Construction Law Section members at the 2025 Annual Meeting held in Lincolnshire on June 5–6.

DEI Is Dead: Long Live Economic Development By Margery Newman November 2025 An update to a February 2025 article that explored affirmative action programs in the construction industry, this article discusses the criteria for certification as a BDE and how current and future companies that are either certified DBEs or want to become certified DBEs will be required to show how they have been disadvantaged.

Editor’s Note By Samuel H. Levine December 2025 A note from the editor of the Construction Law Section newsletter, Building Knowledge.

Editor’s Note By Samuel H. Levine November 2025 A note from the Editor of the Building Knowledge Newlsetter, the newsletter of the Construction Law Section, regarding the current issue and upcoming CLE programs.

Editor’s Note By Samuel H. Levine October 2025 A note from the Editor of Building Knowledge, the newsletter of the Construction Law Section.

Editor’s Note By Samuel H. Levine September 2025 A note from the Editor of the Construction Law Section Newsletter providing a preview into the current issue.

Editor’s Note By Samuel H. Levine May 2025 An introduction to the issue from the editor.

Editor’s Note By Samuel H. Levine February 2025 An introduction to the issue from the editor.

Fewer Sleepless Nights for Mechanics Lien Claimants’ Counsel By James M. Dash November 2025 If you represent claimants in actions under the Illinois Mechanics Lien Act, don't find yourself on the wrong side of statutory deadlines. However, a case from the Bankruptcy Court for the District of Idaho, In re Millenkamp Cattle, Inc., may offer some comfort.

Fraud Allegations, Lien Validity, and the Limits of Summary Judgment By Brianna Serrano September 2025 A look into the lessons learned from Englewood Construction, Inc. v. J.P. McMahon Properties, LLC and its impact on your practice.

From the Editor By Samuel H. Levine January 2025 An introduction to the issue from the editor.

ISBA 2025 Solo and Small Firm Conference Photos October 2025 The Illinois State Bar Association hosted the 2025 Solo and Small Firm Conference: The Innovative Lawyer: Smart Strategies for Small Firms in the Age of AI on September 25–26 at the Embassy Suites in Naperville, IL.

Join Us at the ISBA & IJA Midyear Meeting—a Taste of What’s Ahead By Ted M. Niemann December 2025 The Joint Midyear Meeting, hosted by the Illinois State Bar Association and the Illinois Judges Association, is a can't-miss event, offering CLE programs on democracy preservation and the ethical use of AI; a Member Appreciation Reception featuring Glow Bingo and prizes; the Illinois Bar Foundation for the Champions Breakfast; the IJA/ISBA Joint Midyear Meeting Luncheon; and a Holiday Reception honoring the Supreme Court of Illinois. Register today!

LAWPAC Needs You! February 2025 The Illinois Lawyers’ Political Action Committee (LAWPAC) needs your help to fulfill its mission to support the legislative goals of the ISBA and Illinois’ legal community.

The Modified Total Cost Method: A Few Thoughts By Stanley N. Wasser October 2025 A look at the modified total cost method, the necessary elements that must be met in a case to utilize the modified total cost method, and the case law that has shaped the topic.

The New Receivership Act: Claims Filing, Automatic Stays, and Receivership Sales of Real Estate By Paul Peterson December 2025 This article higlights some of the key sections of the Receivership Act that a real estate practitioner or mechanics lien claimant should consider, including purpose, scope, notice, status of receiver as lien creditor, sale of real estate, contracts, injunctions, claims bar date, and discharge of the receiver.

Overcoming the Fear of Arbitration By Hon. Lisa R. Curcio, (ret.) January 2025 Parties avoid arbitration because of several common fears. Besides the limited right to appeal, parties fear an arbitrator who will “split the baby” or treat the arbitration like litigation, increasing the cost of resolving the dispute, or an arbitrator who does not know the law or ignores the law. Yet there are concrete ways that parties can take advantage of the benefits of arbitration while overcoming these fears.

Public Acts Summary By Paul Peterson October 2025 An overview of the Public Acts of the 104th General Assembly that were submitted to the Construction Law Section Council and may impact various areas of construction law.

Recent Legislation Affecting the Construction Industry By Samuel H. Levine September 2025 Learn more about 3 bills that will impact construction law, including amendments to the Home Repair and Remodeling Act Governing Attorneys Fees, the Illinois Receivership Act, and restrictions in the State Agency Retainage Act.

Recent Retainage Reforms in Illinois: First Private Projects, Then Local Government, and Now State Agencies By James Rohlfing October 2025 On June 1, 2025, the Illinois legislature passed House Bill 1224 (HB1224), restricting retainage permitted to be withheld from contractors on construction projects with certain Illinois state agencies. The bill was signed by Governor Pritzker on August 15, 2025 and created Public Act 104-0168, which will become effective June 1, 2027. It will be the third new law in the last six years enacted by the Illinois legislature restricting the withholding of retainage under Illinois construction contracts.

Tariffs and the New Risks To Be Addressed in Construction Contracts By Jeffrey Kehl September 2025 Consider incorporating additional provisions, like tariff adjustment clauses, price escalation clauses, force majeure clauses, among others, in your contracts to protect yourself against tariff increases.

“That Can’t Be Right”: Illinois Contractors Must Be Aware of Sureties’ Rights Upon Default Under Payment and Performance Bonds By Frank M. Swanson January 2025 Upon receiving notice of a potential declaration of default under a Payment and Performance Bond, we often receive questions from clients about what measure of control they can properly assert over a surety’s selection of a substitute contractor. The answer to some is surprising: almost none. Yet, the risk of the surety selecting an improper surety, or risking contractual relationships, can be minimized at the contracting stage through simple, clear modifications of the standard A312 Payment and Performance Bond and standard contractual provisions.

The Trilogy of Builder’s Risk Cases—Clarity or Confusion? By Geoffrey Bryce February 2025 A recent Illinois Supreme Court case completes the trilogy of recent builder’s risk decisions. The builder’s risk policy is intended to shift the risk of loss to the insurer to facilitate the completion of the construction project and avoid litigation. The builder’s risk claim, if paid, almost always presents the issue of just how far does the waiver of subrogation by the parties covered by the builder’s risk policy extend. The recent caselaw delves into this issue.

Waiver of Consequential Damages in Construction Contracts By Werner Sabo December 2025 Whether to include a waiver of consequential damages provision in a construction contract can have significant implications if something goes wrong. Consultation with a knowledgeable construction attorney who can investigate the requirements of the project to adequately protect the client is important.

When Bad Things Happen to Good Projects By Samuel H. Levine May 2025 The article examines the suspension of construction projects, their causes, and the contractual rights and responsibilities involved. Industry-standard contracts like AIA A201 and ConsensusDocs 200 contain suspension clauses that allow owners to suspend work for convenience and outline contractor rights, including time and cost adjustments. Federal contracts also permit suspension but typically exclude profit in recovery. Levine's article highlights the need for contractors to follow claim procedures carefully and document delays and damages. It also covers force majeure clauses, emergency provisions, and differentiates between delay and disruption claims. Special emphasis is placed on the importance of proper contract drafting and timely communication to manage the impacts of suspension.