McKeon1
Kevin J. McKeon

For more than 20 years, Kevin McKeon’s practice has been focused on counseling construction industry clients in dispute prevention and resolution. Kevin has represented contractors and sureties, both domestically and internationally, with a concentration on underground and heavy/highway government infrastructure projects, as well as building construction and structural steel jobs.

At the outset of new projects, clients rely on Kevin’s advice to evaluate and negotiate contractual terms and project delivery methods for purposes of assessing risk and establishing administrative procedures to increase job profitability. During project execution, clients seek counseling to navigate the process of handling differing site conditions, changes, delays and acceleration, lost productivity, engineering and design defects and liens. Kevin has particular experience regarding terminations for default and for convenience, and for performance bond claims. With respect to disputes that cannot be resolved through negotiation, Kevin is frequently in mediation, and has served as lead counsel through dozens of trials and arbitrations in state and federal courts throughout the country, as well as before the American Arbitration Association and the International Centre for Dispute Resolution.

Kevin also represents clients in dealing with One Call and Miss Utility issues, Project Labor Agreements, the Davis-Bacon Act, DBE compliance, Public-Private Partnerships, Design/Build, complex construction defect and insurance-related issues. He has always maintained engagement in the academic side of the law since being selected for the editorial board of The Duquesne Law Review, as a teaching assistant to a former dean, and as a research assistant to a former associate dean in law school, and since then has taught civics and ethics at both Penn State and Duquesne University, and published a treatise and lectured as a continuing legal education instructor on construction law.

Kevin is also general counsel to the National Utility Contractors Association in his home state of Pennsylvania, as well as in the District of Columbia.

On a personal level, Kevin and his wife, Tiffany, have four children, all of whom are passionate Penn State and Pittsburgh sports fans. Aside from spending time with family, during spare time, Kevin is a voracious reader of American and Irish history, Catholicism, philosophy, Hemingway, James Fenimore Cooper and Hunter S. Thompson. He enjoys hunting and fishing, and gets to play a couple rounds of golf each year.

  1. General Information

    Education

    • Duquesne University, J.D., 1995
    • Pennsylvania State University, B.A., 1992

    Bar Admissions

    • Pennsylvania
    • Virginia

    Court Admissions

    • U.S. Court of Appeals for the 3rd Circuit
    • U.S. Court of Appeals for the 4th Circuit
    • U.S. District Court for the Eastern District of Virginia
    • U.S. District Court for the Eastern District of Pennsylvania
    • U.S. District Court for the Middle District of Pennsylvania
    • U.S. District Court for the Western District of Pennsylvania
  2. Representative Engagements

    Judgments and Awards

    • $10 million award as lead trial counsel for a wrongfully terminated at-risk construction manager on a high-rise condominium project in New York City, also defeating owner’s $135 million counterclaim against the surety’s performance bond.
    • Summary judgment in defending the surety for steel trade contractor resulting in the dismissal of a $25 million performance bond claim and an affirmative recovery settlement on a major league baseball stadium.
    • Judgment on the pleadings as lead counsel defending a general contractor against wrongful termination and tort claims asserted by a subcontractor on a $95 million Pennsylvania Turnpike paving project.
    • Dismissal of all claims as lead trial counsel defending a general contractor against more than 10 separate actions in multiple venues asserting claims for contract balance, changes, and RICO allegations by a subcontractor terminated for default in constructing a $40 million apartment complex.
    • Obtained injunction, including mandatory relief, as lead trial counsel against the City of Trenton, New Jersey, prohibiting the City from rejecting all bids and ordering the City to award $6.8 million pump station contract to prime contractor.
    • Successfully defended a Taiwanese joint venture/subcontractor as lead trial counsel against a U.S. prime contractor seeking to prove the propriety of its decision to terminate the joint venture for default and to recover $40 million in damages, through nearly 4 consecutive weeks of arbitration hearings, and negotiated settlement following issuance of the tribunal’s interim award on liability.
    • Verdict for a material supplier as lead trial counsel in an action directly against the design engineer for economic damages caused by the engineer’s negligent approval of submittals on a wastewater treatment plant project.
    • Jury verdict for general contractor as trial counsel seeking to recover re-procurement costs against a subcontractor that withdrew its bid
    • Multiple awards for prime contractors as trial counsel against municipal authorities for changes, differing site conditions, lost productivity, excessive retainage and improperly assessed liquidated damages, on wastewater and waterline projects.
    • Award for concrete subcontractor as trial counsel against lead prime contractor for scope changes, improperly assessed liquidated damages, and excessive retainage on a public school project; successfully defended the award through the Pennsylvania Supreme Court twice.
    • Award for full amount of claimed damages for electrical prime contractor as trial counsel in delay claim against a school district.
    • Award for steel prime contractor as trial counsel against construction manager for scope changes and differing site conditions on an office building project.
    • Award for asbestos abatement contractor as trial counsel against community college for differing site conditions.
    • Award for site development prime contractor as trial counsel against owner of condominium development for differing site conditions.
    • Award for drywall subcontractor as trial counsel against general contractor for scope changes and differing site conditions on an office building project.
    • Dismissal of criminal charges against a general contractor accused of disturbing waterways.
    • Award for owner as trial counsel against general contractor on a large residential project.
    • $0 award for general contractor as trial counsel defending against subcontractor’s claims for changes on a warehousing project.

    Mediated and Negotiated Settlements

    • Negotiated $7 million settlement as counsel for a general contractor on a delay and lost productivity claim against a state department of transportation.
    • Negotiated mediated settlement during litigation as lead counsel to general contractor and its surety involving more than 200 extra claims by a subcontractor and 100 backcharges arising out of a $40 million subcontract for a state highway construction project.
    • Negotiated settlement in mediation prior to any litigation as lead counsel for general contractor constructing a sewage treatment plant, following overflow disaster and clean-up involving municipal authority, engineer of record, major equipment supplier, DEP, surety and multiple insurance carriers, regarding design issues, remedial work plan and coverage issues.
    • Negotiated settlement in mediation for performance bond surety and terminated EPC contractor after a week long state court trial on the definition of “substantial completion” for a combined cycle, cogeneration power plant.
    • Negotiated settlement as counsel for a general contractor defending against claims by a subcontractor on a pipeline project in Iraq.
    • Negotiated settlement in mediation prior to any litigation as lead counsel for steel fabricator and erector in delay and acceleration claim on a major college football stadium.
    • Negotiated settlement in mediation as lead counsel for general contractor and its insurance carrier, involving water infiltration and defects on newly constructed condominium complex, and involving owner, architect of record, six subcontractors and insurance carriers for each party.
    • Negotiated $0 settlement during litigation as counsel to railroad construction contractor and its bid bond surety when sued by railroad for refusal to perform.
    • Negotiated settlement in mediation as counsel for an owner against a general contractor for defect claims on two 250+ unit condominium projects in California.
    • Negotiated settlement as counsel for a roller-compacted concrete paving subcontractor wrongfully-terminated by a general contractor on an aviation brigade military base in New York.
    • Negotiated settlement as counsel to site development contractor pursuing a $4 million change order for lost productivity on a $20 million slurry pond for coal mining waste.
    • Negotiated settlement as counsel for a general contractor after filing $1.5 million in mechanics’ liens on a wood pellet manufacturing plant.
    • Negotiated settlement of $2 million claim for delay, acceleration and lost productivity as counsel for steel trade contractor in construction of a new steel mill.
    • Negotiated settlement as lead counsel for plumbing prime contractor against school district and other prime contractors on a public school project.
    • Negotiated settlement in malpractice action against a subcontractor’s prior counsel for failure to properly perfect a mechanics’ lien.
    • Negotiated settlement as co-counsel for a steel supplier after filing a mechanics’ lien for nearly $1 million on a wind farm.
    • Negotiated settlement as counsel to a general contractor after filing a mechanics’ lien on a pharmaceutical plant.
    • Negotiated settlement as lead counsel for general contractor against a church in Ohio for scope changes and design deficiencies.
    • Negotiated settlements in mediation as lead counsel for general contractors against various public authorities for delays, lost productivity, and differing site conditions on various sanitary sewer, storm sewer, bridge and wastewater treatment plant projects.
    • Negotiated settlement as lead counsel for paving subcontractor against general contractor, owner, and design professionals on a country club.
    • Negotiated settlement as counsel for the surety on claims against a turbine supplier on a power plant project in California.
    • Negotiated $0 settlement in mediation as lead counsel defending the surety against a performance bond claim on an office building project in California.
    • Negotiated settlement as lead counsel for a site work subcontractor against a general contractor for changes, excessive retention, remedial work, and building settlement claims on a commercial warehouse project.

    Other Representative Engagements

    • Successfully represented Associated Builders & Contractors as amicus curiae before the United States Court of Appeals in defending against United States Department of Labor’s efforts to apply Davis-Bacon Act prevailing wages to a private project constructed on public land.
    • Summary judgment as counsel to a public housing authority in a civil rights action; successfully defended appeal to the United States Court of Appeals for the 3rd Circuit.
    • Verdict for group of employees deprived of wages, as lead trial counsel and including award of attorneys’ fees.
    • Acquittal from the jury as defense counsel to an individual wrongfully accused of indecent and statutory assault.
    • Prepared, reviewed and negotiated numerous contracts, claims and change orders.
    • Reviewed numerous public contracts, bid documents and private contract documents, and created contract administration manuals and guidelines for same.
    • Reviewed and advised clients regarding numerous labor and employment issues.
    • Prepared and prosecuted mechanics’ liens and bid protests, and negotiated dozens of OSHA Citations.
    • Pro-bono lobbying efforts on various pieces of construction-industry related legislation at both the state and federal levels.
  3. Memberships & Affiliations
    • Global Construction & Infrastructure Legal Alliance (www.gcila.org)
    • American Bar Association
      • Forum on the Construction Industry
      • Litigation Section Public Contracting Section
    • Pennsylvania Bar Association
    • Virginia State Bar Association
      • Construction Law Section
      • Litigation Section
    • NUCA – PA
    • NUCA – DC
    • National Bond Claims Association
    • Corpus Christi Catholic Church
      • Building Committee
      • “That Man Is You!” Core Group Leader
    • Eastern Loudoun Wrestling Club – Assistant Coach
  4. Publications and Presentations
    • Speaker:   “Best Legal Practices to Keep Jobs Profitable,” National Utility Contractors Association, State College, PA, February 2017; Wilkes-Barre, PA, April 2017; Meadville, PA and Pittsburgh, PA, May 2017.
    • Author: “Utility Contractors Beware:  New Developments on ‘Plumbing,’ the ‘Fire Foot Rule’ and the Separations Act in Pennsylvania,”NUCA Newsletter, March 2017.
    • Author:  “Pennsylvania Supreme Court Finds That A Municipality That Acts In Bad Faith May Still Avoid Liability For Attorney’s Fees and Penalty Under The Penalty Under The Procurement Code,” Watt Tieder, Newsletter, November 2016.
    • Author: “Arlington Diocese WorkCamp 2016: ‘Show Know Mercy,’” Watt Tieder Newsletter, August 2016.
    • Moderator: “Monitoring Conduct of Indemnitors: Disposition of Assets and Fraudulent Transfers,” National Bond Claims Association, San Antonio, TX, October 2013.
    • Speaker: “Joint Ventures & Teaming Arrangements: How, When & Why to Team Up for Large Projects,” National Utility Contractors Association – District of Columbia, Washington, DC, August 2013.
    • Speaker: “Don’t Stop Believin’: Design/Build for Wastewater Projects in Pennsylvania,” American Waterworks Association and Design Build Institute of America Joint Conference, Hershey, PA, April 2013.
    • Conference Chairman: “A Look in the Crystal Ball: Forecasting the Future of the Construction Industry,” Associated Owners and Developments, Arlington, VA, February 2013.
    • Author: “What is E-Discovery and Predictive Coding? And Why Should People in the Construction Industry Care?” with Sarah Simmons, Esq., NUCA-PA Newsletter, December 2012.
    • Speaker: “Project Labor Agreements: The History, Politics and Legal Developments,” National Utility Contractors Convention, Fort Worth, TX, March 2012.
    • Speaker: “THE Construction Contracts Program: Understanding and Negotiating the Critical Clauses in the Industry Form Documents,” ABA Forum on the Construction Industry, Pittsburgh, PA, November 2011.
    • Speaker: “Public-Private Partnerships: We Bonded What? And for How Long?!” National Bond Claims Association, Monterrey, CA, October 2010.
    • Author: Pennsylvania Construction Law , a treatise, co-written with David Wonderlick, published by HLK Global Communications (www.constructionchannel.net), April 2010.
    • Speaker: “‘Constructability’ Certification and Bidding Requirements, and the Implications Under Bilt-Rite, ExTech, and Spearin,” Pennsylvania Utility Contractors Association, Erie, PA; Altoona, PA; Wilkes-Barre, PA; and Glenside, PA; April 2010.
    • Speaker: “Ethical Issues in Complex Construction Litigation,” Allegheny County Bar Association Construction Law Section, Pittsburgh, PA, December 2009.
    • Speaker: “Construction Lien Law and Payment,” Lorman, Philadelphia, PA, June 2009.
    • Speaker: “Legal Issues & Pitfalls in Design/Build Contracting,” Pennsylvania Utility Contractors Association, Reading, PA and Altoona, PA, January 2009.
    • Speaker: “The Fundamentals of Construction Contracts: Understanding the Issues,” Lorman, Allentown, PA, January 2009; Philadelphia, PA, February 2009.
    • Speaker: “Construction Lien Law and Payment in Pennsylvania,” Lorman, Philadelphia, PA, March 18, 2008.
    • Speaker: “Construction Law from Contract to Closeout in Pennsylvania,” Lorman, King of Prussia, PA, February 22, 2008.
    • Speaker: “Standard Contract Clauses and What They Mean to the Detailer,” North American Steel Construction Conference, New Orleans, LA, April 2007.
    • Speaker: “Construction Law from Contract to Closeout in Pennsylvania,” Lorman, Philadelphia, PA, October 2006.
    • Speaker: “Recent Developments in Pennsylvania Construction Law,” Sheet Metal & Air Conditioning Contractors’ National Association – Hershey, PA, June 2006.
    • Author: “Court Allows Contractor to Pursue Claim for Downtime,” Construction Claims Advisor, Vol. 4, Issue 30, July 2006.
    • Author: “School Board Finds Loophole to Avoid Paying Extra Work Claims,” Construction Claims Advisor, Vol. 4, Issue 9, February 2006.
    • Author: “Sureties’ Failures to Notify Do Not Merit Claim Denial,” Construction Claims Advisor, Vol. 4, Issue 8, February 2006.
    • Author: “Subcontractor Not Bound to its Mistaken Bid Price, but Prior Course of Dealing Could Establish Breach of Contract,” Construction Claims Advisor, Vol. 4, Issue 1, January 2006.
    • Speaker: “Building a Foundation for Managing Complex Construction Law Issues in Virginia,” National Business Institute, McLean, VA, October 2005.
    • Speaker: “The Fundamentals of Construction Contracts: Understanding the Issues in Virginia,” Lorman, Fairfax, VA, September 2005 and September 2006.
    • Author: “Beyond the Contract II: Third Party Claims Against A/E’s and C/M’s,” From The Ground Up, Summer 2005. Reprinted in The WBC Bulletin, September 2005.
    • Author: “The Clock Runs Out for Payment Bond Claims on Stadium Project,” Construction Claims Advisor, Vol. 3, Issue 23, June 2005.
    • Speaker: “Life After Bilt-Rite,” Mid-Atlantic BX aka Harrisburg Builders Exchange, Camp Hill, PA, December 2005.
    • Speaker: “Virginia Construction Law: What do you do when…?” National Business Institute, Fairfax, VA, February 2005.
    • Speaker: “Selecting a Winning Project and Delivering a Profitable Job,” National Utility Contractors Association, Washington, DC, November 2002 and November 2004.
    • Author: “Five Years Later: A Look at the 1997 Revisions to the AIA General Conditions – The Mutual Waiver of Consequential Damages,” Construction Law & Public Contracts News, Spring 2003.