Month: June 2011

NLRB Proposes Change to Voting

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06/28/2011Lowenstein, Neil S.

On June 22, 2011, the National Labor Relations Board published a Notice of Proposed Rulemaking in the Federal Register to propose amendments to its existing rules and regulations governing certain procedures. Among other things, the proposed rule would, if adopted, according to the NRLB: Allow for electronic filing of election petitions and other documents. Ensure… Read more »

GAO Bid Protests: How long do I have to file again?

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06/24/2011Lowenstein, Neil S.

In the current construction client, bid protests seem on the rise. For Federal projects, the most common protest venue is the General Accountability Office (GAO). But how long do you have to protest? If the protest relates to something within the solicitation itself, the bid protest must be filed before bid opening, or such alleged… Read more »

Government Contractor? – Your sophistication may be presumed

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06/17/2011Lowenstein, Neil S.

Most everyone would like to be considered “sophisticated,” but those performing federal contracts might feel otherwise. The GAOCAB recently noted in Grunley Constr. Co., Inc. v. Architect of the Capital, GAOCAB No. 2009-1, 2010 WL 2561431 (June 16, 2010) that “[u]like private contractors, government contractors who perform large contracts for the government are ‘neither unsophisticated… Read more »

Federal Project PLAs: House’s Military Construction Bill Doesn’t Preclude

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06/16/2011Lowenstein, Neil S.

Project Labor Agreements are becoming increasingly used for state and local project throughout the Country, and there’s been an increasing usage for Federal projects too; particularly with the current administration. One’s view of PLAs depends upon one’s view of a right to work vs. union approach to business. There was a move in Congress to… Read more »

Inducing statements: fraud or mere opinion?

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06/15/2011Lowenstein, Neil S.

In his February 22, 2011 letter opinion in Environmental Staffing Acquisition Corp. v. Beamon Enterprises, Inc., CL09-2688, 3 Cir. CL092688, Judge Melvin of Portsmouth Circuit Court concluded that a subcontractor’s statement during the proposal process that the subcontractor “had exactly what you are looking for” was a matter of opinion, and not a fraudulent statement… Read more »

Qui Tam Plaintiff Awarded $2.2M in Attorneys’ Fees

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06/09/2011Lowenstein, Neil S.

After winning a $7.6M jury award, the realtor plaintiff in a Qui Tam action (U.S. ex rel. Maxwell v. Kerr-McGee Oil & Gas Corp. D. Colo., No. 04-cv-01224, 6/2/11) against the company he alleged falsely reported royalties with the government, the judge trebled the damages, and after adding statutory penalties the total award was $22.9M…. Read more »

Government Not Required to Certify Claims under CDA

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06/08/2011Lowenstein, Neil S.

In trying to avoid the government’s claim against it, a contractor recently tried to argue to the Civilian Board of Contract Appeals in Navigant SatoTravel v. General Services Administration, CBCA, No. 449, 5/26/11, that the Board lacked jurisdiction because the government did not certify its claim against Navigant. The Board rejected the argument, holding that… Read more »

Proactive management: staying ahead of the curve

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06/06/2011Lowenstein, Neil S.

Most projects sail smoothly. Generally, that is the result of good business practices, cost controls, staff management, etc. Typically though the focus is on the nuts and bolts of construction, and making things go together smoothly from technological standpoints. Often overlooked is contract administration: making sure contracts are signed, insurance certificates received, and other “i”s… Read more »

Prejudgment interest against a surety: recoverable but from when?

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06/01/2011Lowenstein, Neil S.

Neither the Miller Act nor the Little Miller Act have specific provisions for the recovery of prejudgment interest if a claimant prevails on a bond claim. Absent contractual language in a commercial bond, it’s the same result. However, case law generally holds that in such actions state law on prejudgment interest applies. Virginia statute allows… Read more »