People: Steven J. Kmieciak, Senior Counsel

Steven J. Kmieciak

Senior Counsel

Washington, D.C.
Direct: (202) 828-5374
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Mr. Kmieciak is senior counsel in the Construction Department of the Washington, D.C. office of Seyfarth Shaw LLP.  He regularly engages in counseling on commercial and government construction contract matters and specializes in the avoidance and resolution of disputes.  He has been involved in many types of projects including high-rise office and condominium projects, hotels, industrial facilities, dredging, above- and below-ground heavy rail mass transit systems, bridges, buildings, airport facilities, container seaports and wharves and civil works.  He also has significant experience resolving claims arising from U.S. Government supply contracts, and he has defended clients facing false claims and defective pricing investigations and qui tam suits.  He has represented clients on a number of international projects.  Mr. Kmieciak has developed expertise in the following areas:

Contract Drafting and Interpretation: Mr. Kmieciak regularly engages in contract review, advising on risks and obligations, drafting contracts, and assisting in the negotiation of contract terms and conditions.  He provides advice with regard to AIA, ConsensusDocs, FIDIC, ICE, U.S. Government, and various State contract forms, as well as project-specific contracts.  He also reviews and drafts joint venture agreements. Working extensively with experts, he is able to analyze and interpret technical documents including engineering drawings, and he has worked regularly with cost plus, GMP, fixed price, design-build and EPC contracts.  

Contract Administration: Mr. Kmieciak is frequently called upon to interpret contracts during the course of contract performance concerning issues such as notice, changes, scope of work claims and differing site conditions, delays and disruptions, suspension of work and terminations for convenience and default.  He prepares, presents and negotiates claims.  He has worked extensively with expert witnesses on issues of delay and disruption, inefficiency, cost, architecture, geotechnical engineering, dredging, structural engineering and construction means and methods.  Mr. Kmieciak has defended clients facing False Claims Act and defective pricing investigations.

ADR and Litigation: Mr. Kmieciak has litigated cases in State and Federal courts and State and Federal Boards of Contract Appeals.  He has participated in International Chamber of Commerce and American Arbitration Association arbitrations and resolved disputes through the use of mediation. He has extensive experience with the preparation and examination of expert witnesses in a variety of disciplines.

Mr. Kmieciak is senior counsel in the Construction Department of the Washington, D.C. office of Seyfarth Shaw LLP.  He regularly engages in counseling on commercial and government construction contract matters and specializes in the avoidance and resolution of disputes.  He has been involved in many types of projects including high-rise office and condominium projects, hotels, industrial facilities, dredging, above- and below-ground heavy rail mass transit systems, bridges, buildings, airport facilities, container seaports and wharves and civil works.  He also has significant experience resolving claims arising from U.S. Government supply contracts, and he has defended clients facing false claims and defective pricing investigations and qui tam suits.  He has represented clients on a number of international projects.  Mr. Kmieciak has developed expertise in the following areas:

Contract Drafting and Interpretation: Mr. Kmieciak regularly engages in contract review, advising on risks and obligations, drafting contracts, and assisting in the negotiation of contract terms and conditions.  He provides advice with regard to AIA, ConsensusDocs, FIDIC, ICE, U.S. Government, and various State contract forms, as well as project-specific contracts.  He also reviews and drafts joint venture agreements. Working extensively with experts, he is able to analyze and interpret technical documents including engineering drawings, and he has worked regularly with cost plus, GMP, fixed price, design-build and EPC contracts.  

Contract Administration: Mr. Kmieciak is frequently called upon to interpret contracts during the course of contract performance concerning issues such as notice, changes, scope of work claims and differing site conditions, delays and disruptions, suspension of work and terminations for convenience and default.  He prepares, presents and negotiates claims.  He has worked extensively with expert witnesses on issues of delay and disruption, inefficiency, cost, architecture, geotechnical engineering, dredging, structural engineering and construction means and methods.  Mr. Kmieciak has defended clients facing False Claims Act and defective pricing investigations.

ADR and Litigation: Mr. Kmieciak has litigated cases in State and Federal courts and State and Federal Boards of Contract Appeals.  He has participated in International Chamber of Commerce and American Arbitration Association arbitrations and resolved disputes through the use of mediation. He has extensive experience with the preparation and examination of expert witnesses in a variety of disciplines.

Education

  • J.D., University of Maryland School of Law (1979)

  • B.A. in Government and International Studies, University of Notre Dame (1975)

Admissions

  • District of Columbia
  • California (Currently Inactive Status)
  • Maryland
  • Texas (Currently Inactive Status)

Courts

  • U.S. Court of Appeals for the Fourth Circuit
  • U.S. District Court for the District of Columbia
  • U.S. Court of Federal Claims

Affiliations

  • American Arbitration Association, (Arbitrator; Construction Panel of Arbitrators (1990-2000) (2009 - Present)); Past Member of the National Construction Disputes Resolution Committee
  • American Bar Association (Section of Public Contract Law; Forum Committee on the Construction Industry)
  • Associated General Contractors of America (Serves on the following Committees: Contract Documents; International Construction; Government Affairs; NAVFAC and Corps of Engineers)
  • Jubilee Support Alliance (Member, Board of Directors (1999-2003)

Representative Engagements

  • Representing the owner in structuring and negotiating EPC and other contracts for the development of a $1.5 billion nitrogen fertilizer facility.
  • Represented the owner in negotiating EPC contracts valued at more than $1 billion for industrial facilities, including separate contracts for the purchase and integration of production equipment.
  • Represented the contractor in defense of a qui tam case arising out of an Air Force contract.
  • Represented the contractor in the negotiation of a construction contract with the developer of a major new U.S. Government headquarters facility having a value exceeding $500 million.
  • Represented the design builder with regard to changes and claims arising out of the design build contract for a U.S. Government owned and operated engine plant.
  • Represented the general contractor in the preparation and negotiation of a multimillion dollar claim arising out of a contract to build a water treatment plant for a public agency in California.
  • Represented the contractor in a dispute with the Air Force and Corps of Engineers arising out of a contract to renovate and upgrade an Air Force base.  The construction work included the installation of new underground fuel lines and other aircraft services, firefighting facilities and hangar reconstruction.  Advised the client on contract interpretation issues, prepared and prosecuted the $20 million claim before the ASBCA.  The case was settled after a minitrial.
  • Represented the Engineer providing advice on a series of FIDIC contracts in Africa.
  • Represented the owner of a factory in disputes arising out of a contract to install new mass production equipment.  Provided advice on issues of contract interpretation and defended the contractor’s claims amounting to $5 million filed in Federal Court.  The case was settled.
  • Represented a Belgian dredging contractor in its dispute with the owner arising out of a contract to dredge a harbor in Mexico.  Prepared and prosecuted the claim and defended the counterclaim totaling $26 million in an arbitration before the International Chamber of Commerce, which was held in Geneva, Switzerland.  
  • Represented the contractor who was terminated for default on a construction project in Virginia.  The case was eventually tried in a five month jury trial.  Obtained a contractor’s verdict for $1.5 million and defeated an $8 million counterclaim.
  • Represented the State of Maryland in the defense of claims in excess of $20 million arising from work on the Baltimore Subway.  Claims included substantial time extensions as well as many technical engineering issues.  The defense required careful analysis and interpretation of the contract.  The case was ultimately tried at the Maryland Board of Contract Appeals and judgment was rendered in favor of the State.
  • Represented the State of Maryland on the construction of a diked disposal facility in the Chesapeake Bay.  The project was primarily a dredging project.  Provided advice throughout the period of construction concerning contract interpretation issues, analyzed the claims submitted by the contractor, and defended those claims amounting to $15 million before the MSBCA.  The case was ultimately settled.
  • Represented the curtain wall contractor in a four-week AAA arbitration against the general contractor for changes and delays, and defended against the contractor's counterclaims.
  • Represented the manufacturer of munitions for the Army.  The dispute included an analysis of the mass production equipment installed and the processes that were used to perform the contract.  Reviewed and analyzed the contract and prosecuted the $12 million claim before the ASBCA.  The case settled on the eve of trial.
  • Provided advice to a contractor on the Taipei subway concerning significant provisions of its contract and on contract administration issues.

Presentations

  • Regularly presented seminars to clients on U.S Government Contracts and Construction Law Issues

Publications

  • Co-Author, “Accounting Issues in Fraud Investigations,” Construction Accounting: A Guide for Attorneys and Other Professionals, ABA Forum on the Construction Industry, Chapter 11 (2010)
  • Contributing Author, “Contracting For International Construction Works,” Construction Law Handbook, Wolters Kluwer, Second Edition, Chapter 41 (2009)
  • Contributing Author, “AGC Document No. 520: Standard Form of Agreement Between Owner And Trade Contractor,” AGC Contract Documents Handbook, Aspen Publishers, Chapter 9 (2003)
  • Construction Briefings: The State Department’s Embassy Construction Program,  Federal Publications – A West Group Company, Second Series (August 1999)