The Government Accountability Office (“GAO”) issues statistics each year regarding the outcome of bid protests.  In 2015, there were 2,639 cases filed and there we 587 decisions on the merits.  Of those, only 68 protests were sustained.  According to the way the GAO presents its statistics, that would indicate that protestors prevailed approximately 12% of the time.  In reality, since many protests were withdrawn or summarily dismissed, the protesters only prevailed in 68 of the 2,639 protests filed and the true success rate was closer to 3%.  With those odds, why would anyone file a GAO bid protest?  The answer requires a little closer scrutiny since statistics can be misleading.

There are a number of protests which should not have been filed in the first place since they are not supported by the facts or case precedent.  This could have been avoided by thorough legal research of prior decisions of the GAO and the United States Court of Federal Claims.  Careful screening before filing a protest will ultimately lead to a greater number of potentially meritorious protests.  It must always be kept in mind, however, that great deference is shown to the discretion of contracting officers.  What that means is that if the source selection boils down to a judgment call, the government is going to prevail.

The GAO reported that the most prevalent reasons for sustaining protests were:

(1) unreasonable cost or price evaluation

(2) unreasonable past performance evaluation

(3) failure to follow evaluation criteria

(4) inadequate documentation of the record

(5) unreasonable technical evaluation.

It is important to note that a significant number of protests filed with the GAO do not reach a decision on the merits because agencies voluntarily take corrective action in response to the protest rather than defend the protest on the merits.  Agencies need not, and do not, report any of the myriad reasons they decide to take voluntary corrective action.  If an agency decides to take corrective action, however, it may mean that the protest has merit and the corrective action may lead to a re-evaluation of the proposals.  In many cases, this is very outcome that would have resulted from a GAO decision.  In cases where the GAO dismisses the protest because the agency decides to take corrective action, those protests are not be included in the GAO’s calculation of protests decided on the merits.

One drawback in the system, however, is that in a negotiated procurement the protester is operating at a disadvantage because the source selection decision and supporting documents are not available for review.  This puts the protester in the difficult position of having to file the protest in order to determine whether there is a sound basis for the protest.  The critical agency documents are only made available to the protester’s attorney under a protective order.  It may be that after the protester’s attorney reviews the documents, which he is not permitted to share with this client, it will become apparent that the agency made a proper source selection.  That does not mean that the protest should not have been filed, however, because the protest was essential in order to obtain the best information.  There was also a possibility that favorable documents would have been located that may have led to a successful protest.  In fact, all of the most prevalent reasons for sustaining a protest, as listed above, were dependent upon review of the agency’s documents after the protest was filed.

Save on your business auto insurance by shopping out your current rates and coverage’s. Learn about business auto insurance coverage’s and get a free business auto insurance quote today.

Handyman insurance is must-have protection before you begin work in your customer’s home.  Shop out your insurance rates and coverages online at HandymanInsurance.com. Get your free quote today and compare the different plan options

An important coverage to consider is commercial vehicle coverage. Whether you have a van or truck that you use specifically for commercial purposes, or you use your personal vehicle to drive to and from job sites, be sure to consult with a knowledgeable agent about whether you need commercial vehicle insurance. Many entrepreneurs and small business owners do not realize that a personal auto policy is often not applicable if an accident occurs while the vehicle is in use for commercial purposes.

Workers compensation insurance covers you or your employees in the event of a work-related injury, illness or death. It also replaces a portion of the injured worker’s income if a long or permanent absence is required for healing and rehabilitation.

Workers comp regulations vary by state. Carrying this coverage is usually not required if you are a sole proprietor, but in some states you must carry this coverage if you are in business, whether or not you have employees. If you do have staff, workers compensation is almost always required by state law. Even if you are a one-person operation, this coverage can protect you if you are injured and cannot work.

Find out how to get extra protection for your handyman business with liability insurance. An independent agent can compare affordable rates for your needs.  For your free quotes just click on the “Get Quote” link found at the top of our page on our website.

If you are a Handyman and you are looking for Business Insurance you have found the right place. Get free quotes today from HandymanInsurance.com to compare and save.

As with almost everything now a days you can easily shop for handyman including on line
and submit your information and get quotes from a few carriers at once.  This website dose just that.

Another way you can shop for insurance is to look for a local broker. Do a quick google search for “contractor liability insurance” or even “handyman liability insurance” and you should get several results.  It is recommend to ask for a referral to a good insurance agent.  Talk to other contractors or handymen and ask them which agent they used and if they like them.

There are many factors that play into premium cost so prices will vary greatly.  The best way to make sure you are not paying too much is to deal directly with an insurance agent or to shop on line and review at least three or four companies quotes.

That depend on several factors. If you answer yes to any of the following questions, it is probably a good idea to go ahead and get it.

* Does your state require it?

* Does your target market include apartment complexes?  Eventually, you may get an apartment deal.  If you are just starting out, this is unlikely unless you are strongly targeting them.

* Are you planning to do any work on bank owned properties?

* Are you planning on getting licensed as a contractor or handyman?  I’m not currently licensed because my state doesn’t require me to be.  I just can’t do jobs over $1,000.

* Are you well established and can easily justify the expense?

* Do you where a helmet everywhere you go?

If you answer no to all of the following questions, you may to consider holding off.

You can choose to add  Products-Completed Operations Liability insurance in addition to your Premises-Operations Liability Insurance to cover you against claims that may result from your completed job site operations.

Unfortunately, construction contractors who fall behind schedule are automatically on the defensive and they rarely find that contracting officers are willing to concede government responsibility. The government, of course, is in a difficult position when it must explain to its customer – the end-user – that the scheduled completion date will not be met. All too often, instead of admitting that the contractor is not responsible, the threat of a termination for default is held over the contractor’s head because it is easier to blame the contractor than to admit that the government made a mistake.

The standard FAR “Default” clause (FAR 52.249-14) provides that a delay is excusable and does not provide a valid basis to terminate the contract for default if it is “beyond the control and without the fault or negligence” of the contractor. For a delay to be excusable under a construction contract, it must also be “unforeseeable.” A contractor may be excused if the delay is caused by defective government specifications, differing site conditions, constructive changes, a waiver of the contract completion date, or a failure of the government to comply with the procedural requirements that must be followed to support a termination for default. It is important for a contractor to document government-caused delays as they occur, rather than waiting to build a case after the fact.

Premises-Operations Liability is coverage while you are performing work on your customer’s property. It provides coverage against claims for injury or that occur as the result of your work while the work is in progress. It also covers you for injury or damage occurring on premises you own or rent and it includes $2,500 in tools coverage with a $250 deductible.

The SBA Offers Some Specifics on the Expansion of the Mentor-Protégé Program

As many government contractors may know, in February 2015, the U.S. Small Business Administration (SBA) issued a proposed rule aimed at expanding its mentor-protégé program. The proposed regulations would implement changes introduced by the Small Business Jobs Act of 2010 and the National Defense Authorization Act of 2013, and would permit a wide array of small businesses to participate in the SBA’s mentor-protégé program. Currently, only 8(a) certified firms can take advantage of the many benefits offered SBA’s mentor-protégé program, including a broad exception to affiliation for mentor-protégé joint ventures.

While this was great news for many back in February 2015, it has been nine months since this proposed rule was issued and we have yet to see an interim, or a final, rule. The delay has many government contractors asking when the SBA is actually going to put these changes into effect. Well, we now have some idea: Sometime in the first quarter of 2016.

On October 27, 2015, the U.S. House of Representatives’ Committee on Small Business Subcommittee on Contracting and the Workforce, chaired by U.S. Representative Richard Hanna, held a hearing entitled “Maximizing Mentoring: How are the SBA and DoD Mentor-Protégé Programs Serving Small Businesses?” Based on the testimony given at the hearing, and the information compiled in the Subcommittee’s related memorandum, it appears that a final rule will be issued in the first quarter of fiscal year 2016, and that the agency hopes to launch a pilot program sometime in the summer of 2016.

Key Takeaway for Government Contractors:

The expansion of the mentor-protégé could mean a lot more flexibility for small businesses. HUBZone, SDOVSB and WOSB/EDWOSB companies would have the ability to joint venture with larger mentors without the risk of affiliation. This, in turn, would make these small companies much more competitive.

The Importance of Complying with the Specific Requirements of Bond Claims

Ok, so this isn’t really a “new” legal development, per se. The requirements relating to bond claims is an issue that has been discussed among government contractors since, well, since bonds have been a requirement. However, while bond claims are often discussed, they are also commonly misunderstood. Many contractors do not fully understand their obligations concerning timing, notice, or procedure to perfect a bond claim. This is particularly true when it comes to performance bond claims against bonded subcontractors. In this context, contractors often fail to comply with their obligations and are adversely impacted. A recent Missouri case is just the latest example of this, and serves as a harsh reminder that the failure to comply with bond requirements can nullify an otherwise legitimate bond claim.

In that case, a plaintiff-general contractor, Curtiss-Manes-Schulte (CMS), subcontracted work to Balkenbush Mechanical, Inc. (BMI) on a renovation project located at Fort Leonard Wood, MO. Safeco Insurance Company of America (Safeco) provided the performance bond for BMI. As the project progressed, BMI fell significantly behind schedule. CMS informed Safeco, through a “Contract Bond Status Query” that BMI was not progressing satisfactorily, the contract was 9 months past due and liquidated damages would be assessed. However, CMS did not declare the subcontractor “in default,” a requirement under the bond. BMI ultimately abandoned the project, and then filed for bankruptcy protection. After completing BMI’s work itself and incurring significant additional costs, CMS made a claim against Safeco under BMI’s performance bond, citing BMI’s failure to perform. Because CMS never technically defaulted BMI, Safeco refused to pay CMS’ demand, asserting that CMS had failed to satisfy the bond requirements. CMS then sued Safeco.

In assessing CMS’ performance bond claim, the United States District Court for the Western District of Missouri noted that the performance bond specifically provided that the subcontractor had to be declared in default, and, further, that Safeco had to be notified of that default. Because CMS never formally defaulted BMI, and, in any case, never informed Safeco that BMI had been defaulted, the Court found that Safeco’s obligations under the bond were never triggered.

Key Takeaway for Government Contractors:

Make sure you are aware of the specific terms of each and every bond that could affect your interests. Contractors tend to pay close attention to “upstream” bonds relating to payment but forget about how important the rules are when it comes to “downstream” performance bond claims. It is imperative that all government contractors understand the terms of all relevant bonds, and their obligations thereunder, as well as any federal, state or local statutory or regulatory requirements relating to those bonds. Otherwise, they risk forfeiting a perfectly legitimate claim. If you have any questions about the terms of a particular bond, or the applicable regulatory or statutory requirements, consult a legal professional.

Third Circuit Creates “Offset” Exception for Damages Relating to State DBE Fraud

In the last issue of Legal Landscape, we talked about the increased importance of the False Claims Act and the uptick in fraud actions by the Federal Government, as use of the FCA has expanded. As previously discussed, state and local governments have followed suit by aggressively prosecuting contractors for making false statements, or claims, of various types and kinds. As part this process, many local governments have increased the amount of monetary damages, and broadened the types of penalties, associated with fraud and false claims actions, including suspensions and debarments. Overall, there has been a marked trend over the past five years toward the draconian enforcement of fraud-related regulations and statutes, the expansion of liability, and the imposition of increasingly serious penalties.

A good example of the above is the Federal Government’s Presumed Loss Rule, introduced by the Small Business Jobs Act of 2010. The Presumed Loss Rule provides that, if a concern willfully misrepresents its size or status to receive the award of a federal contract, subcontract, grant or cooperative agreement, the loss to the government is presumed to be the total amount expended by the government under that contract, subcontract, grant or cooperative agreement. In other words, if you lie to the government about being small to get a contract, the damages assessed against you will be equal to the total amount of that contract. That’s a pretty stiff penalty, but it is entirely consistent with the trend toward escalating enforcement and prosecution.

One recent case may signal a slight shift in the other direction. In United States v. Nagle, the Third Circuit found that the damages assessed against a contractor found guilty of fraud on a state government contract had to be “offset” against the fair market value of the services provided under that contract. In Nagle, the co-owners of Schuylkill Products Inc. (SPI) and its wholly owned subsidiary, CDS Engineers, Inc. (CDS), engaged in fraud-related crimes in connection with PennDOT and SEPTA contracts. In order to take advantage of contracts with Disadvantaged Business Entity (DBE) participation requirements, SPI and CDS – both non-DBE entities – set up a “front” DBE subcontractor, Marikana. SPI and CDS “subcontracted” to Marikana, but, in reality, they performed all of the work on Marikana’s subcontracts. SPI and CDS paid Marikina a fixed fee for its participation, but otherwise kept the profits for themselves.

When this scheme was uncovered, the owners of SPI and CDS were charged with fraud. In analyzing the appropriate damage assessment against the owners, the U.S. District Court for the Middle District of Pennsylvania determined that the amount of loss each defendant was responsible for would be equal to the face value of the contracts that the DBE front company was awarded. Such an assessment was consistent with the Presumed Loss Rule outlined above.

However, on appeal, the Third Circuit disagreed with the lower court’s damage assessment. The appellate court held that, in a DBE fraud case, the amount of loss attributable to defendants should be calculated by taking the face value of the contracts and subtracting the fair market value of the services rendered. The court further clarified that “fair market value” can be calculated by the value of the materials supplied, the cost of the labor necessary to assemble the materials and the value of transporting and storing those materials. In other words, the damages assessed to a defendant for DBE fraud must be decreased to account for the fair value of services actually provided by that defendant.

Key Takeaway for Government Contractors:

Nagle dealt with DBE fraud committed in connection with Pennsylvania state contracts, which were funded through the U.S. Department of Transportation. The Nagle decision was rendered by the Third Circuit, which means the case could be considered controlling in Pennsylvania, New Jersey and Delaware. It is not yet clear whether other jurisdictions will carve out similar exceptions, or whether the majority of other states will adhere to something more similar to the Federal Presumed Loss Rule. It is further unclear as to whether the exception in Nagle would apply if SPI or CDS had misrepresented their own DBE status, rather than arranging for a front DBE subcontractor. In any case, the damages associated with a potential fraud matter can be quite severe. It is important to understand the rules and make sure that you and your subcontractors are not engaging in any conduct that might constitute fraud.

Handyman insurance is must have protection before you begin work in your customer’s home.
As a handyman, securing a General Liability Insurance policy is essential in covering the unforeseen incidents that can occur on the job.

In a recent decision by the Armed Services Board of Contract Appeals, Dick Pacific Construction Co., Ltd., ASBCA No. 57675 et. al., decided on December 15, 2015, the Board repeated something that has been said many times before:

We consider daily logs to be the most reliable evidence of what actually happened during construction. Technocratica, ASBCA No. 46567 et al., 99-2 BCA ¶ 30,391 (“Daily inspection reports have been held to be prima facie evidence of the daily conditions as they existed at the time of performance.”)

Boards and courts often refer to daily reports as “contemporaneous records,” because they were created at the time that the events occurred and usually well before a claim was anticipated.  It is for that reason that such records are assigned greater credibility than documents created after the fact.

Field personnel on a construction project have many important things to do in a given day, but they are well advised to take the time to record specific events that may have an impact on the time or cost of performance.  The “remarks” section on a daily report is particularly important.  If a Quality Control Representative is asked to testify about conditions on the site that occurred several years earlier, the memory of the witness will be much more believable if his recollections are supported by contemporaneous records.

A surety bond is a guarantee that you will provide the services you have contracted for. You may be required to have your company bonded because of local ordinances, or you may find that your customers will not hire you until you are bonded.

The LA 1 Coalition announced construction will commence in the summer of 2016 on an elevated roadway leading to Port Fourchon, La.

The $46 million project will include 3,400 ft of elevated highway connecting La. 3235 in Golden Meadow and Port Fourchon. The project is Phase 2C of the nearly-$2 billion, four-phase LA 1 Improvement Project to elevate roadways in the area.

When your company is ready to hire additional employees, whether a secretary to help schedule work projects or additional apprentice handymen, you are required by law to provide workers comp insurance. Workers comp coverage pays the employees expenses if they are ever injured while working.

SUNY Polytechnic Institute is planning a 504-bed residence, new student center and a 650-space parking facility near its Albany headquarters.

SUNY Poly’s Colleges of Nanoscale Science and Engineering recently split from the University at Albany and currently has no dorms of its own. In March, the college solicited dorm proposals from developers but did not say where the buildings would be located.

A solar farm proposed for Oneida in Madison County would be one of the largest in Upstate New York, covering ten acres of land.

The city signed a 25-year power purchase agreement with Vermont-based company groSolar to build the solar farm, which will feature roughly 9,000 3 by 3 ft solar panels. It will generate 3.5 million kilowatts of electricity, covering about 90% of the city’s electricity needs.

Even though this is something as a business owner we hope never happens but, as your business grows and you add employees, there may come a time when one of the employees steals from your company. Whether they take tools or cash, or they arrange shady kickback deals with friends, your company suffers from the financial losses.

The Louisiana International Deep Water Gulf Transportation Terminal (LIGTT) will soon start construction on its offshore port concept. The structure is projected to span 2,250 acres over open water and cost $10 billion.

Developers recently secured $25 million in financing to fund the project’s first “vertical,” a dry bulk facility that would be used to offload cargo from massive ships to smaller ships to be taken up the Mississippi River. The port will sit in open water three miles off the coast of Plaquemines Parish and twenty miles from the port of Venice.

Most modern companies keep important business information in electronic form. If your company’s data is damaged or destroyed, a BOP can help cover the expenses involved with replacing those files and specialized software applications that are critical to your business operation.

Regional revenue for specialty contractors in the New York-New Jersey area declined in 2014, com- pared to the previous year, according to the results of ENR New York’s 2015 ranking of firms working in those fields.

Aggregate revenue for the top 45 specialty contractors on the 2014 list was $3.49 billion while those who ranked in 2013 reported $3.84 billion. The rankings are based on firms’ prior year revenue figures.