Tymon Berger

Attorney Profile

Top Rated Construction Litigation Attorney in Seattle, WA

Berger Construction Law
 | 3213 W Wheeler St, Suite 516
Seattle, WA 98199
Phone: 206-887-9596
Selected to Rising Stars: 2014 - 2018
Licensed Since: 2008
Practice Areas:
  • Construction Litigation: Business (80%),
  • Government Contracts (20%)
Attorney Profile

Focusing his practice exclusively on various aspects of construction law, Tymon Berger is the founder of his own law firm located in Seattle, Washington. Tymon (pronounced tim-min) provides representation to contractors, subcontractors, project owners, and developers throughout the Pacific Northwest. Tymon's experience encompasses federal, state, and local public works projects, as well as private developments of all kinds. Tymon regularly lectures on topics related to his practice, including presentations on contract disputes, drafting, risk allocation and management, bid protests, and construction liens on public and private projects. Tymon has also written extensively on construction law topics, publishing articles in law reviews, trade publications, industry websites, and the Seattle Daily Journal of Commerce, and has appeared as a construction law legal consultant on television.

Prior to becoming an attorney, Tymon spent a decade in the construction industry, starting as a laborer and carpenter and rising up the ladder to project manager for three national-sized general contractors. Mr. Berger's experience has included claims resolution, including design-defect disputes and delay-and-impact claims; the negotiation, preparation, and review of construction contracts; bid protests; regulatory compliance; and representing contractors in a multitude of disputes over changes. The types of public developments that he has worked on have included bridges, stadiums, and schools, and his caseload has included several high-profile private commercial projects. Admitted to practice before all Washington state courts as well as before the U.S. Court of Federal Claims, his successful track record has earned him the respect of his colleagues, as evidenced by his receipt of a 10.0 "Superb" peer review rating through Avvo.

Tymon's professional memberships include the Construction Law Section of the Washington State Bar Association and the Section of Public Contract Law of the American Bar Association. Tymon also sits on legal and legislative affairs committees for the AGC of Washington and the Washington chapter of the National Utility Contractors Association. Tymon is a Leadership Tomorrow fellow, a unique collaboration between the Greater Seattle Chamber of Commerce and the
United Way of King County with the goal of enhancing the civic involvement of the region’s emerging leaders.

 
Practice Areas
Lawyer Practice Area Pie Chart

Construction Litigation (80%)

Government Contracts (20%)

Selections

top-imageSelected to Rising Stars for 5 years

Rising Stars: 2014 - 2018

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About Tymon Berger

Admitted: 2008, Washington

Professional Webpage: https://www.bergerconstructionlaw.com/attorney-profile/tymon...

Honors/Awards:

  • William Mitchell Law Review
  • National Moot Court Competition
  • William Mitchell Construction Law Group, President

Bar/Professional Activity:

  • AGC of Washington Legal Affairs and Local Government Affairs Committees
  • National Utility Contractors Association of Washington Legislative Affairs Committee
  • WSBA Construction Law Section
  • ABA Forum on the Construction Industry and Public Contract Law Section

Pro bono/Community Service:

  • Leadership Tomorrow
  • Seattle’s Union Gospel Mission

Scholarly Lectures/Writings:

  • Providing construction practitioners with strategies for pursuing, defending and preventing acceleration claims. The panel will discuss the perspectives of owners, general contractors and subcontractors, offer guidance for managing claims, and discuss contractual provisions that can help parties equitably resolve them as projects move forward., Presenter, Construction Acceleration Claims and Defenses: Strategies for Owners, General Contractors, and Subs, Strafford Seminars, Construction, Construction Lawyers, 2018
  • Presentation on legal concepts surrounding delay on construction projects., Co-Chair, Primary Legal Concepts for Delay Claims, The Seminar Group, Construction, 2018
  • Presentation on AIA's update of its suite of design and building contracts., Presenter, AIA 2017 Contract Documents, The Seminar Group, Construction, Construction Lawyers, 2017
  • CLE Bootcamp: Construction Law Buzz, Seminar Group, 2017, Presenter, CLE Bootcamp: Construction Law Buzz, The Seminar Group, Construction, Construction Lawyers, 2017
  • Investigation of Seattle City Light's GC/CM procurement practices., Legal Commentator, City Light's New Building: Sweetheart Deal or Good Business?, KOMO 4 Investigators, Construction, Construction Lawyers, 2015
  • The volume of construction work that's underway and that's set to begin here in Washington will have contractors looking back someday on these being the boom times. There are the ongoing mega-projects like the Big Bore, the Seawall and the 520 Bridge — projects that have their share of issues, but nevertheless promise to keep contractors busy for several years to come. But the real economic driver is the unprecedented transportation and infrastructure package the governor recently signed into law. The package promises to spend $16 billion over the next 16 years. At its peak, projects around the state will be spending an average of $1.6 billion per year between 2019 and 2025., Author, $16B transportation package will keep contractors busy here for years to come, Seattle Daily Journal of Commerce, 2015
  • Construction is a collaborative process. Always has been, always will be. Despite this reality, market forces have historically prevailed in developing construction contracts to compartmentalize the owner’s relationships with the builder and the designer, keeping designer and builder separate from each other despite the need for these entities to work together in order for the project to succeed. At its most dysfunctional, collaboration in construction occurs in the field, typically between a superintendent and a field engineer doing their level best to resolve an issue that managed to go unaddressed until well after steel had been purchased, formwork built and concrete poured. Despite the most valiant efforts, collaboration at this point often comes too late to efficiently affect any needed changes. Enter alternative contracting methods. Construction is no different from other businesses in that the market participants figure out the best way to accomplish a goal while lawyers and insurers follow behind wagging a finger at the risk created by going off script, improvising or being an entrepreneur. This article discusses the oftentimes unallocated risk that’s created by collaboration and the melding of construction and professional services; the technology incentivizing even greater collaboration and blurring of the traditional designer and builder roles; and how you can effectively manage this risk by reassessing your contracts and insurance coverage., Author, Construction Contractors Face New Risks With Early Design, Seattle Daily Journal of Commerce, 2015
  • Discussion of alternative procurements (e.g., GC/CM, D-B, IPD) and the unique ethical issues they present., Presenter, Avoiding Ethics Traps in Alternative Procurements, American Society of Professional Estimators, Construction, Construction Lawyers, 2014
  • Summary and analysis of legal concepts surrounding delay analysis and claims., Presenter & Author, Exposing Weaknesses in Delay Claims, Lorman Education Seminars, Construction, Construction Lawyers, 2014
  • In the last days of September, the city of Seattle announced dramatic changes to the prompt payment terms found in the city's standard contract provisions for public construction work. The city initially appeared ready to release the proposed changes on Oct. 1 for comment prior to enacting them on Jan. 1, 2014. But the city apparently scrapped those plans in favor of applying the new provisions to all bids and contracts entered on or after Oct. 1. The city's new provisions clash with state prompt pay laws in several key respects. The state prompt pay laws have an overarching structure that obligates public owners to promptly pay contractors for undisputed work; and for contractors, in turn, to promptly pay their subcontractors upon receiving payment from the public owner. The city's new prompt pay provisions diverge from this, requiring instead that contractors pay their subcontractors regardless of whether the contractors have received payment from the city. Further, the enforceability of these new provisions between contractor and subcontractor remains unsettled as these are contract provisions, not law. And while the new provisions aspire to regulate the payment obligations between general contractors, subcontractors, and lower-tier subcontractors and suppliers, the city's contract provisions disclaim any intent to monitor and enforce contractual obligations between these same parties and specifically refuse to confer any rights or obligations beyond the general contractor. Washington's prompt payment requirements are largely captured in three state laws. First, state law requires contractors and subcontractors to pay downstream subcontractors within 10 days of receiving payment for the downstream subcontractor's work. Contrary to this principle of paying subcontractors only after receiving payment from a public owner, the city's new provisions require general contractors and subcontractors to pay downstream subcontractors and suppliers within 30 days of satisfactorily completing work — regardless of whether the contractor or subcontractor has received payment for the work from the city. If the city hasn't paid for the work by day 30, general contractors and any subcontractors with lower-tier subcontractors or suppliers become financiers of the city's project. This same state law requiring prompt payment only upon receiving payment also allows contractors to withhold 150 percent of the value of disputed work. In contrast, the city's new provisions limit the amount withheld to only the value of the disputed work. Second, state law requires the city to make payment on properly completed invoices within 30 days. The city's prompt pay provisions do not account for this obligation, requiring contractors to make payment within 30 days regardless of whether the city has complied with its obligations under state law. Unless the city pays early — which seems exceedingly unlikely — contractors will be forced to pay subcontractors from their own funds. Third, state law requires the city to issue a change order for the full value of undisputed additional work. The city must do so within 30 days of the additional work's completion. Under the city's prompt pay provisions, however, the contractor has 30 days to pay for satisfactorily completed change order work and work performed pending change order documentation. Contractors will therefore have to wait for the city to issue the change order, then pay on the invoiced change order — a process that all but guarantees the contractor's obligation to pay subcontractors with its own money. Most troublesome of all: Because a contractor must pay for completed additional work regardless of whether the city has issued a change order, the contractor is at significant risk of paying for additional work that the city ultimately refuses to approve and pay for. In light of these new provisions, contractors must take steps to minimize the impact of the new contract provisions, including holding the city accountable for complying with state prompt payment requirements. The city's failure to pay within 30 days of receiving properly invoiced work makes the city liable to the contractor at 1 percent per month. By timely paying the subcontractor, the interest owed the contractor by the city provides some return on the contractor's loan to the city. But that's likely little comfort when compared to the much larger risk of paying for additional work that the city may never pay for. Contractors and subcontractors alike can also reduce their risk by making adjustments to their standard subcontracts. These adjustments might include giving precedence to subcontract provisions in incorporation clauses, defining and conditioning “satisfactory completion” on payment by the city, taking a closer look at the subcontract's payment provisions, and tying backcharge provisions to satisfactory completion., Author, New City Policy has Contractors Acting Like Banks, Seattle Daily Journal of Commerce, 2013
  • Indemnity provisions are one of the primary and most easily recognized tools used in allocating risks in a construction contract. There are others, of course, like provisions addressing delay, unforeseen conditions, or consequential damages. But none of those provisions allocates the breadth of risks that are typically channeled through a construction contract’s indemnification clause. When used properly, these clauses improve efficiency by allocating risks to the parties best able to control or bear them., Author, New Supreme Court Decision May Undermine Washington Construction Contracts, 2012
  • For the second consecutive year the Washington legislature has decided against a state-based false claims statute. This leaves fraud-prevention on public works projects to the federal False Claims Act, a comprehensive statutory scheme that has received recent criticism for being too broad., Author, Washington Nixes State False Claims Act, Seattle Daily Journal of Commerce, Construction, Construction Lawyers, 2010
  • In reading the American Recovery and Reinvestment Act back in February it became readily apparent that the Recovery Act’s Buy American provision would not play well with existing buy-domestic laws and rules. To resolve these conflicts the President’s cabinet has promulgated new federal procurement rules issued findings on how transportation contracts comply with the new Buy American proviso and provided states with guidance on how to spend Recovery Act grant money in accord with international trade agreements., Author, Executive Branch Fills-In Gaps On Stimulus and Buy American, AGC of Washington, 2009
  • Review and discussion of Washington's construction common law., Presenter, Top Ten Construction Cases in Washington, American Society of Professional Estimators, Construction, Construction Lawyers, 2009
  • Earning a profit in construction requires digging for pennies in a minefield. The headwaters of this risky business first gather around its lack of vertical integration. Construction can hardly boast one-stop shopping. Not only does the Owner traditionally buy a design and a building from two different sources, but the parties themselves extend hopelessly outward in order to meet their contractual obligations. The magic of raising a glass and brick laboratory, for example, from the raw elements of cement dust, iron ore, clay, and sand requires endless horizontal contracts with specialty designers, tiers of subcontractors, and chains of manufacturers, suppliers, and distributors. To make matters worse, many people are in the minefield looking for the same pennies. For instance, construction had six times as many suppliers sharing the same dollar in 2002 as wholesale trade, the single largest sector of the U.S. economy. As the economy's sixth largest sector, construction shared $ 1.2 trillion with 710,000 suppliers. By comparison, wholesale trade shared nearly four times that amount amongst a far fewer 440,000 suppliers. Moreover, these construction suppliers are mostly small, undercapitalized, and financially unstable. Thus, the extent of this fracturing, coupled with low-entry barriers, translates into expanded risk and high competition. Razor-thin margins result, leaving only pennies for contractors. For construction's customers, the inescapable reality is that building is a means to an end. In meeting this end, poor timing has always plagued the industry. As early as the 1930s, for example, economists in Chicago found that by the time construction caught up with demand for office space, the demand had already begun to wane. Naturally, this led to an oversupply in the market and falling rents. This illustrates how construction's transaction costs, due in this case to long lead times, keep a constant pressure on demand. Transaction costs also arise from the uncertain nature of construction itself. This inherent uncertainty compounds the diminishing profit margin problem and adds a layer of risk that is unattractive to many investors. Thus, it is no surprise that the largest U.S. corporation earns in one quarter what the largest U.S. contractor sells in an entire year. It is important to understand that risk lies at the heart of all construction. The construction industry sweeps across a financially diverse group of owners, contractors, and designers, creating unique risk and a unique means of governing and allocating that risk. Thus, a necessary allocative and distributive purpose for construction exists: to place risk with those who can control it, transfer it, and maximize the cost-benefit of bearing it. The contractor, in particular, is uniquely positioned to affect this process. Finding the Pennies. Our built environment results from combining three fundamental elements: customers, designers, and builders. Traditionally, these elements are cast in three distinct characters. The customer element, represented generically by "the Owner," is central to all construction. Under a traditional framework, the Owner gathers the remaining elements under two separate contracts, forming the compartmentalized tripartite arrangement of traditional construction delivery. Over time, these elements have mixed together in countless ways to efficiently allocate and spread the risks inherent in pushing back rivers, scratching roads through wilderness, and raising skyscrapers from marshes. In the process, the compartmentalization of the tripartite system has dissolved as markets find more efficient formulations for transferring risk. As this continues to occur, the three primary elements further blend into various hues and reallocate themselves amongst hybrid parties. Construction management is an example of this market influence. Construction management emerged from "the perceived weaknesses and inefficiencies" of the traditional tripartite approach. These weaknesses became apparent with technological developments in the industry, the demand for greater control over project costs and schedules, and design professionals seeking to avoid their traditional liability as master builder. Extremely high interest rates and inflation in the 1970s added to the dissatisfaction and led owners to search for ways to speed up the construction process. Fast-track construction, along with multi-prime contracting and construction management, emerged from this crucible. Construction management was developed to serve as the Owner's jungle guide in an intense building environment. Indeed, a close reading of B.C. Hart's 1972 article reveals processes that later grew into fast-track and design-build. Further, the bouncing baby Hart spoke of was more accurately the construction management blanket wrapped around these nascent fraternal twins. A major problem with the original construction management model was that while CMs were experts at forecasting and managing costs, they never provided a means of guaranteeing those costs to the Owner. The Owner found this problematic because it needed to forecast cash flows and secure lending. But because the CM approach had always been about serving the Owner, the CM-at-risk was soon created to provide the Owner the Guaranteed Maximum Price, or GMP, feature it desired. Protecting the Pennies. A severe side effect results from allowing market forces to shape the construction delivery process. By leaving the classification of these market evolutions to superficial and irregular criteria, the industry provides courts with a confusing mix of contradictory definitions and non sequiturs, in addition to the already complicated process of deciding construction cases. As explained below, no standard definition for CM-at-risk or GC/CM exists, nor does clarity as to how these processes differ from a typical general contractor (GC) managing fast-track construction., Author, Drawing the Line: A Proposal for Limiting the Form and Function of Construction Manager Project Delivery, 34 Wm. Mitchell L. Rev. 153, Construction, 2007
  • Lien Rights for Contractors Providing Pre-Con Services, AGC of Washington, 2011
  • Bill Removes Retainage Inequity, AGC of Washington, 2012
  • Bid Disputes – Three Keys to Success, Engineering News Record, 2013
  • Truth, Lies, & Red Tape: Making Money on Fed’l Construction Contracts, In-House Client Seminar, 2009
  • BIM Legal Issues, AGC Education Foundation, 2009
  • Construction Lien Law, Lorman Education Seminar, 2012
  • Everything to Know About the American Recovery & Reinvestment Act, AGC of Washington, 2009
  • Bid Protests: Proven Strategies That Work, AGC of Washington, 2010
  • Understanding Construction Claims in Six Easy Steps, AGC Future Leadership Forum, 2010
  • Lien Law Update, AGC Education Foundation, 2011
  • Hedging Against Subcontractor Default Risk, South Sound CFMA Roundtable, 2012
  • Managing Your Project to Avoid Legal Pitfalls, AGC Future Leadership Forum, 2013
  • Alt. Project Delivery: Recent Revisions & Continuing Trends, In-House Client Seminar, 2014
  • Evaluating Legal Issues and Contract Disputes, HalfMoon Education Seminar, 2015
  • Risk Management & Legal Concerns, SBA Bonding Symposium, 2017

Industry Groups

  • Construction
Office Location for Tymon Berger

3213 W Wheeler St
Suite 516
Seattle, WA 98199

Phone: 206-887-9596

Tymon Berger:

Last Updated: 3/18/2019

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