Keeping up with Cotney

By Emma Peterson. 

The latest Cotney Brief shares April 2026 construction law insights and updates. 

For contractors working in roofing and construction, the Cotney Briefs are an invaluable resource to keeping up with legal and regulatory changes affecting the industry. These briefs are written by Trent Cotney, a lawyer and partner at Adams and Reese law firm. Here’s what the April 2026 brief highlighted.  

1 – Compliance stakes raise with an E-Verify law 

Ohio recently enacted House Bill 246, otherwise known as the E-Verify Workforce Integrity Act. Originally signed in December of 2025, this law “covers nonresidential construction contractors, subcontractors at any tier and labor brokers that hire employees for covered nonresidential construction projects.”  

What does it mean? The covered employers must run new employees through E-verify unless a limited exception applies. If the employee receives a final nonconfirmation, the employer must terminate employment. 

What this means for contractors: If you are performing nonresidential construction work in Ohio, it is crucial to review your hiring processes to confirm E-Verify compliance and ensure that your record keeping is accurate as to avoid violations, which can lead to “monetary penalties, disqualification from public contracting, and in some cases license consequences for knowingly employing unauthorized workers.” 

2 – Duty to inquire court case 

In a case between Korte Construction Co. And the Secretary of the Army, a Federal Circuit court was asked to look at an issue of Korte needed to install chilled water improvements as part of a project. Korte argued that this improvement was not shown in the drawings as they were not detailed enough and they are not required to do this. Opposingly, the Army was seeking a refund of roughly $493,000 for the lack of chilled water improvements. 

At the core of this issue is solicitation. As Trent wrote, “The main issue was whether the solicitation, read as a whole, required Korte to perform the chilled water work. A related issue was inconsistency between the specifications and drawings which created a patent ambiguity.” The recent result of this case? The Federal Circuit found that the specifications and drawings together unambiguously called for the chilled water improvements and that Korte’s interpretation was “not reasonable.”  

What this means for contractors: This case is a reminder of the importance of reading solicitations (specifications, drawings, etc.) as a whole rather than individuals. Further, it highlights the importance of raising the issue of inconsistent, incomplete and/or unclear plans prior to a bid.  

3 – Water intrusion contract provision 

Water intrusion is one of the most common and expensive issues in the roofing industry. It is also a frequent source of dispute as most contracts don’t properly address temporary dry-in obligations.  

What this means for contractors: In order to avoid these disputes, contractors should consider adding a provision to their contracts that specifically addresses water intrusion and temporary dry-in obligations. Trent recommends something like this:  

Contractor shall take commercially reasonable measures to provide temporary dry-in and protect only those portions of the Work directly opened or disturbed by Contractor during performance of its scope. Contractor’s obligation is limited to the exercise of reasonable care under the circumstances then existing, taking into account the stage of construction, weather conditions, available access, project sequencing, occupancy constraints, and the condition of the existing structure. Contractor does not guarantee or warrant that the Project, the building envelope, or any portion of the premises will remain watertight or free from water intrusion during the course of construction.* 

*Read the whole provision.

4 – What softening confidence means legally 

The current uneven economy is having ripple effects in the roofing industry. Where some projects are growing in popularity, such as data centers, others are weakening due to recession concerns. In fact, “In AGC’s 2026 outlook, contractors reported noticeably dampened expectations compared with the prior year, driven in part by concern over the broader economy and the possibility of a downturn.” 

What this means for contractors: To navigate this softening confidence, contractors should treat this time as a contract discipline moment. In other words, this is the time to "review price escalation language, clarify tariff and procurement risk, tighten notice and claim procedures, preserve suspension and termination rights, and confirm that payment, delay, and force majeure provisions match present market conditions.” 

Read the full brief online.