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Brian J. Vella

Member

Tysons Corner Office
8000 Towers Crescent Drive, Suite 900
Tysons Corner, VA 22182
Phone: (703) 847-6300
Fax: (703) 847-6312

Mr. Vella’s practice is concentrated on heavy construction and commercial construction matters.  For over 30 years, Mr. Vella has represented contractors, engineers and owners in construction related disputes, including matters involving defective specifications, differing site conditions, variations in estimated quantities, design changes, constructive changes, mechanics liens, payment and performance bond disputes, contract interpretation issues, payment disputes, insurance and warranty issues; acceleration, delay, and inefficiency claims; and schedule and costs analysis of contractor claims.

In addition to representing parties in litigation, arbitration and mediation, Mr. Vella counsels clients regarding contract formation and interpretation issues, and in developing strategies for risk analysis and avoidance. In matters involving construction disputes, Mr. Vella has extensive experience in factual analysis; claim organization, preparation and presentation; work with engineering and design consultants, technical experts, scheduling experts, and cost and pricing experts.

Mr. Vella has been selected to the Virginia Super Lawyers list in the area of construction litigation from 2008-2013, 2018-2020. He has also been peer-selected for inclusion in The Best Lawyers in America® in the area of Construction Law from 2006-2020. He has been recognized by Chambers USA: America’s Leading Lawyers for Business in the area of Construction Law in Virginia.

Chambers USA comments Brian has more than three decades of experience handling construction disputes as well as advising on contractual interpretation and risk avoidance strategy. One client reports: "I have the highest respect for him and I rate all of his skills and talent."

 

Education

University of Louisville (J.D., 1984; Deans List; Law Review, Articles Editor; Moot Court Board, President)
University of Mary Washington (B.A., 1980)

Bar Admissions

Commonwealth of Virginia
District of Columbia 

Professional Experience

Smith Pachter McWhorter PLC, 1987-present
Lewis, Mitchell, & Moore, 1986-1987
Virginia Supreme Court and Virginia Court of Appeals; Law Clerk, 1984-1986

Industry Experience

Member of Board of Directors, Schnabel Engineering, Inc. (2008 – 2012)

Teaching Experience

University of Virginia School of Law, Adjunct Faculty: Construction Law, 2014-2019

University of Richmond School of Law, Guest Lecturer: Government Contracts, 1990

Professional Memberships and Honors

Virginia State Bar, Board of Governors of Construction Law and Public Contracts Section
American Bar Association, Member, Public Contract Law Section
Associated General Contractors of America
Associated Builders and Contractors
The MOLES, Program Committee
The BEAVERS, Member
Architecture Technology Curriculum Advisory Committee, Northern Virginia Community College, 2017
Martindale-Hubbell AV Preeminent Rating in area of Construction Contracts and Claims
Virginia and Washington DC Super Lawyers in the area of Construction Litigation, 2008-2020
Best Lawyers® in Construction Law, 2006-2020
Chambers USA - Virginia Top Rated in Construction Law - Band 1 

Speaking Engagements

Speaker: “The Evolution of Design Risk on Transportation Projects.”  American Road & Transportation Builders Association (Law and Regulatory Forum) (June 2019)

Speaker: “The Evolution of Design Risk on Transportation Projects.”  American Road & Transportation Builders Association (Law and Regulatory Forum) (May 2019)

Speaker: “Evaluating Claims in Virginia’s Legal Landscape.”  Travelers Insurance In-House Training Program (April 2015)

Speaker: “Subcontractor Default: What Contractors Need to Know.”  Associated General Contractors Advanced Federal Contracting Workshop (April 2013)

Speaker: “It is Not Free Money! Complications with Federal Funds.”  Virginia Government Finance Officers' Association Conference (Spring 2012)

Speaker: “The Construction Contracts Program: Understanding and Negotiating the Critical Clauses in the Industry Form Documents.” ABA Forum on the Construction Industry (2011)

Speaker: “Contracting with Federal Dollars.” Presentation for the Moles (November 2009)

Speaker: “Contract Risk Management.” AGC of Virginia (February 2009)

Speaker: “Look Before You Leap – Strategies for Participating in Federal Stimulus Act Projects.” Construction Superconference (2009)

Speaker: “Protecting Your Right to Timely Payment on Public and Private Projects.” AGC of Virginia (January 2008)

Speaker: “Risk Containment Strategies on Large Project Management Projects.” Construction Superconference (2008)

Speaker: “Fraud and Compliance Issues in Construction.”  Construction Superconference (2007)

Speaker: “The Ties that Bind Us – Public Private Partnerships.”  ABA Annual Meeting (2007)

Speaker:  “Public-Private Partnerships and Major Infrastructure Construction.”  Construction Superconference (2006)

Speaker: “The Effective Use of Dispute Review Boards – Strategies and Stories from DRB Members and Legal Counsel.” Construction Superconference (2005)

Speaker: “Payment and Performance Bond Claims on Public Projects in Virginia.”  25th Annual Construction and Public Contracts Law Seminar, Virginia State Bar (2004)

Speaker: “Myth vs. Reality: Can Insurance Be Used to Effectively Manage and Limit A/E Risks.” Construction Superconference (2004)

Speaker: “EPC Contracting.”  Construction Superconference (2003)

Speaker: “Working with Consultants and Outside Counsel in Complex Construction Disputes.”  Construction Superconference (2002)

Speaker: “How to Stay ‘On-Track’ on Mega Projects and Avoid Costly Litigation.”  Construction Superconference (2001)

Speaker: “Miller Act and Little Miller Act Claims.”  16th Annual Construction and Public Contracts Law Seminar, Virginia State Bar (1994)

Publications

Co-Editor: Virginia Construction Law Deskbook, Virginia CLE Publications, 2019.

Author: “Payment and Performance Bond Claims on Public Construction Projects in Virginia,” Virginia Construction Law Deskbook, Virginia CLE Publications, Chapter 16 (2019)

Author: “Appropriately Pricing Risk in Alternative Project Delivery Systems,” ENR Article (2012)

Co-Author: Supplement to Chapter 49, Virginia, in State-by-State Guide to Architect Engineer and Contractor Licensing (Walker, et al., ed., 1999)

Co-Author: “District of Columbia Construction and Design Law,” A State-by-State Guide to Construction and Design (ABA Section of Real Property, Probate and Trust Law, 1998)

Co-Author: Subcontractor Remedies (Briefing Papers, 1988 Revision Note, Federal Publications, Inc., Vol. 7, 1985-1987)

Representative Matters

Construction Claims and Litigation: Represented prime contractors before federal and state courts, in mediations, and in private negotiations in a wide range of claims involving large, complex construction projects. Successfully mediated contractor disputes with public agencies and private owners through ADR.

I-95 Express Lanes, Virginia

The I-95 Express Lanes project involved design and construction of approximately 29 miles of High Occupancy Vehicle/High Occupancy Toll (“HOV/HOT”) lanes on the existing Interstate 95 corridor through Fairfax, Stafford and Prince William counties and the City of Alexandria in Virginia. The project’s design/build contractor entered into a subcontract with a specialty subcontractor for design, procurement and construction services for the permanent signs, electrical, and intelligent transportation systems for the project.  Disputes related to the subcontractor’s design, performance problems, and resulting delays lead to multi-million dollar claims and counterclaims between the contractor, the subcontractor, and the surety in state court.  Our firm represented the design/build contractor, and following discovery, the parties agreed to mediation. After multiple sessions, the disputes were resolved.

(Owner: Virginia Department of Transportation)

Jamestown-Verrazano Bridge, Rhode Island

Jamestown-Verrazano Bridge was constructed over Narragansett Bay in Rhode Island.  It consisted of three main segments: a cast-in-place concrete trestle structure, heavy-lift precast approach spans, and a cast-in-place cantilever main span.  The project encountered differing site conditions in pile placement, defective concrete specifications, and defective design issues resulting in schedule delays and cost overruns. Claims were prepared and resolved through mediation.

(Owner: Rhode Island Department of Transportation)

Louisville-Southern Indiana Ohio River Bridges Project, Louisville, KY

The Louisville-Southern Indiana Ohio River Bridges Project was $2.3-billion P3 project that included multiple bridges crossing of the Ohio River between Louisville, Ky., and Jeffersonville, Ind. The Kentucky approach to the new Lewis and Clark Bridge also included an eight-mile-long expressway that required the design and construction of a 1,700-ft-long twin-bore tunnel as part of the Project. Issues and litigation arose concerning the design for the initial tunnel support for the twin bore tunnel.  Our firm represented the tunnel support designer in defending against subrogation claims by the builder’s risk insurance carrier in state and federal courts in Kentucky and Indiana.  After extensive motions practice the claims against our client were ultimately dismissed on summary judgment.

(Owner: Indiana Department of Transportation)

Ellis Square Project, Savannah, Georgia

This project involved construction of an under-ground parking facility and public park in the downtown district of Savannah. The project required deep excavation adjacent to historic structures, including unreinforced masonry buildings. The earth retention system for the project was designed to use soil/cement mix technology in combination with tieback anchors. Soils at the site were described in the geotechnical reports as primarily sand conditions, but after work began clay was encountered, requiring remedial measures to stabilize the site and ultimately the redesign of the support of excavation system. After mediation of the contractor's differing site condition claim provided unsuccessful, the matter was resolved in favor of the contractor in a three-week jury trial in Troup County, Georgia.

(Owner: City of Savannah)

Southern New Jersey Light Rail System

Our attorneys represented the contractor in a dispute with New Jersey Transit over more than $100 million in claims.  The contract for the 34-mile light rail “River Line” system between Trenton and Camden faltered due to delays and disruptions from unscheduled freight traffic, delayed property access, utility relocations and permits, and disputes over recognized change orders and other contract obligations.  The design, build, operate and maintain project ($441 million in the design/build phase) involved design and construction through rural and urban areas; rehabilitation, replacement and continuous operation of existing freight rails; construction of new track, new stations, yard facilities and signaling, and the supply of light rail vehicles.  Throughout construction, we worked with the contractor, a joint venture of one of the country’s top engineering and construction firms and an international manufacturer of rail cars, in analyzing and preparing the claims to promote early resolution.  The dispute could not be resolved without litigation.  Five months into an expected 12-month trial, New Jersey Transit and the contractor settled the dispute. 

(Owner: New Jersey Transit)

Olmstead Lock, Illinois/Kentucky 

A project which involved construction of a new lock on the Ohio River. During construction, the site was flooded by direction of owner with resulting increased costs and delay. The designs of reinforcing steel and concrete were defective and resulted in delays and claims for recovery of increased costs. Claims were resolved through negotiation.

(Owner: Corps of Engineers, Louisville District)

Weehawken Tunnel, Hudson-Bergen Light Rail Transit System, New Jersey

Smith Pachter McWhorter represented the design firm against allegations of a breach of the standard of care in the design of a light rail transit system.  The project was an extension to an existing light rail system with the addition of multiple stations. The extension required the significant expansion (width and height) of the Weehawken tunnel previously used only for single-track freight traffic. The contractor sought hundreds of individual change orders, many of which were contested and became claims for litigation. The basis for the claims varied widely and included: allegations of denied access, owner-directed changes, differing site conditions, FRA compliance issues, claims of defective design in the tunnel structure, signaling issues, and many others. As a result of the weak Economic Loss Doctrine in New Jersey, the contractor was allowed to sue the designer directly, in addition to suing the owner. The three-party litigation went through extensive discovery and the early stages of what was expected to be a months-long trial before the parties reached a mediated settlement.  

(Owner: New Jersey Transit)

The Mt. Lebanon Tunnel, Allegheny County, Pennsylvania

Part of the light rail transit system built by the Port Authority of Allegheny County, Pennsylvania.  The tunnel was the first tunnel in the United States driven using the New Austrian Tunneling Method (“NATM”).  Claims for differing site conditions and variation in estimated quantities were prepared and resolved in arbitration. 

(Owner: Port Authority of Allegheny County, Pennsylvania)

Richmond Flood Control, Virginia

This U.S. Army Corps of Engineers project involved construction of flood walls along the James River.  In the course of construction, differing site conditions were encountered in the pile driving operation and slurry wall construction.  Contaminated soils and design changes were also encountered, delaying the project and increasing costs.  Issues regarding variations in quantity were addressed.  Acceleration efforts, with attendant productivity issues, were undertaken.  Claims were prepared and resolved through negotiation.

(Owner: Norfolk District, U.S. Army Corps of Engineers)

Space Launch Complex (SLC3 East), Vandenburg Air Force Base, California

Completed under an Engineer/Procure/Construct (EPC) contract. During the design phase, changes occurred that caused inefficiencies and additional work and increased the cost of the design effort. Contractual analyses were performed and presented, with all matters being resolved.

(Owner: United States Air Force)

Washington Metro, Station & Tunnels (Section B-10), Washington, D.C.

Constructed using the New Austrian Tunneling Method. In the course of construction, differing site conditions were encountered resulting in excessive rock overbreak increasing the quantity of concrete necessary for the tunnel lining. In addition, large quantities of water entered the excavation through the ventilation shaft. The events led to delays and increased costs. Claims were prepared and litigated successfully before the Corps of Engineers Board of Contract Appeals.

(Owner: Washington Metropolitan Area Transit Authority)

Washington Metro, Section B-GC (Red Line), Washington, D.C.

Involved a cut and cover tunnel operation and track installation delays on the Washington Metro (WMATA) system. The claim issues included site access and availability, as well as design issues and differing site conditions surrounding the tunnel construction. Claims were prepared and were resolved through negotiation.

(Owner: Washington Metropolitan Area Transit Authority)

Washington Metro, New York Ave. Station (Red Line), Washington, DC

In its second Design-Build effort, Washington Metro’s New York Avenue Station was an in-fill station built on the existing WMATA Red Line. Assisted the prime contractor in resolving issues with the owner related to delay and disruption as well as successfully defended the prime contractor in state and federal court against subcontractor suits.

(Owner: Washington Metropolitan Area Transit Authority)

Largo Metro Station, Prince George’s County, Maryland

The Washington Metro Blue Line Extension represented the first extension to the original Metrorail system and WMATA’s first experience with Design-Build project delivery. The failure of the owner to acquire the project right-of-way and to relocate utilities in a timely fashion, along with defects in WMATA’s design documents and unusually severe weather, combined to generate substantial delays in the work. Represented the prime contractor in litigation before the Armed Services Board of Contract Appeals.

(Owner: Washington Metropolitan Area Transit Authority)

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