Federal Contract Law Blog

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Federal Contract Law Blog

Unlawful Fees Charged to Small Businesses

FRAUD ALERT – Kernan & Associates is currently investigating and pursuing cases against a number of rental, waste disposal, commercial food delivery, shredding/recycling, and other types of companies that deliver supplies or equipment.  Small businesses are being harmed by these big companies through the charging of a number of unlawful and misrepresented fees, including fees they

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When Lien Waivers are Illegal

When Lien Waivers are Illegal Transcript Excerpt from the Kernan and Associates Radio Hour (fictional): Attorney: Hello, caller, are you there? Caller: Hi. I have a stupid question. Can I give-up my right to file a mechanic’s lien? I just signed a contract and there’s a section that says I hereby waive may right to

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Sexism in the WBE Certification Process (Part 4)

Sarah’s initial application for WBE certification went smoothly. Phew! She had heard nightmares about the process. She worried about the regulators presuming that she didn’t have what it takes to run the business. She worried about the caprices of certification officers, their biases and subjectivity. She worried about the perception that she didn’t have the

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Sexism in the Certification Process (Part 3)

Sometimes there’s a major problem with the way government agencies decide which businesses can be certified as a WBE or DBE. The rule of law in New York and elsewhere says that women who own businesses certified in a certain trade must have the technical expertise to perform the work of that trade. If a

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The Difference Between “Delay” and “Disruption” in Construction Contract Claims and Why That Matters

Due to the complexity of construction, combined with changes often inherent as a result of the very nature of construction, a contractor’s actual performance can deviate significantly from its originally planned method, manner, sequence, and duration of work. A deviation can impact both the schedule performance period and the overall cost of the project. Delay

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Sexism in the WBE Certification Process – Part 2

Regulations lay traps for unsuspecting women seeking certification as a DBE or WBE. The traps even ensnare women seeking re-certification years after operating successfully as a WBE and relying on the certification as the cornerstone of their business plan. Take Jane Doe, for instance, she and her husband John (or father or male business partner

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Don’t Leave Money on the Table – Request an Equitable Adjustment

Through various clauses, the government establishes its right to make changes in the contract statement of work or period of performance. In exchange for this right, the contractor receives compensating rights to equitable adjustments in contract price and/or schedule. The contractor exercises this right through the preparation and submission of a “request for equitable adjustment”

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Sexism in the WBE / DBE Certification Process (Part 1)

The regrettable presumption that someone’s daughter, or wife, doesn’t have what it takes to operate a construction company, was started not by misogynistic certification officers, it started with a few contractors’ deceptive practices. Here the cliche is true—a few bad apples—men who wanted more contracts and convinced close female family members to pose as owners

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Subcontractor’s Claims on Federal Contracts

Direct subcontractor claims are not authorized by the Contract Disputes Act (CDA) because there is no “privity” of contract between the government and the subcontractor. Specifically, there is no direct relationship between the parties. [See United States v. Johnson Controls Inc., 713F.2d 1541 (Fed. Cir. 1983).]  A subcontractor can make a claim against the government

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Protect Subcontractors from Bad Project Owners with these Words

It can’t be done, they say. You’re a subcontractor on a project with an owner that has screwed up everything from day one, and you want to sue the owner directly for damages because of project mismanagement so bad it should be criminal, but it can’t be done, they tell you. Filing a mechanic’s lien

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Basics of Terminations for Convenience

The government has the contractual right to terminate a contract, in whole or in part, either for default or for convenience if the contracting officer (CO) determines that a termination of an existing contractual arrangement is in the best interest of the government. In return for this right to terminate a contract for convenience, the

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This is Why Your Union Audit Feels Like a Body Cavity Search

The audit notice always comes without warning or reason. You haven’t had any problems with the workers. They’ve (almost) always been great. No one has filed a grievance. The union men and women like working for you and you appreciate their skill. It’s not about them. Still, all of your wages, prevailing and otherwise have

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A Lifeline for Contractors Abused by NY Government

It’s getting near the end of the project from Hell. “This government contract is going to be my last,” you tell yourself. Just about everything went wrong, the Government engineers and contracting officers were unresponsive, rarely available, and when they did communicate with you, they were totally unreasonable, real jerks. Then to make matters worse,

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Magic Words to Stop the Worst DBE and MWBE Abuse (Part 2)

In our last article we identified the issue—a terrible problem plaguing DBE and MWBE subcontractors—wasting their time, draining their resources and crushing their expectations. We heard from a lot of you in response and appreciate your feedback and encouragement in addressing this problem that no one in the industry seems to want to talk about.

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The Worst Abuse of MWBEs and DBEs (and it’s legal!)—Part 1

It happens all the time. The prime contractor of your dreams asks you, yes, you, your small subcontracting company, to give them a proposal, which they will then include as part of their bid for a major public works contract. So, excitedly, you spend hour upon hour, as a team of one (maybe two), pouring

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Let’s Bravely Face What Really Scares Contractors

The night is long for contractors who can’t sleep. Project problems and money worries are the monsters under their bed. But their biggest fear, the thing that keeps them up most, is not what they know—it’s what they don’t know. It’s the unknowns—risks and liabilities they don’t see coming until it’s too late—like a car

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Stop Lawsuits Against Contractors and Cut Losses in Two Easy Steps (Step One)

Our contractor is excited. A big time government authority awarded her a multi-million dollar contract. But all she can think about is the money she will make—the economics—cutting costs, maximizing profit, efficiency, speed, quality and safety. She knows that something could go wrong that will derail performance and eat her profits. She knows that bad

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Contractors and Architects Suing Each Other Architects Should Read This.

It’s a multi-million dollar construction contract and it’s halfway done. Then a snag—a terrible design error, so terrible that doing it the way the architect wants will cause the project to quite literally cave in on itself. What to do? Request a change? Denied. “Proceed as planned,” says an unreasonable owner’s rep. and rejects your

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Joint Ventures Part II: How NOT to commit DBE fraud

So another contactor tells you, “Joint ventures are a great way to win big contracts. Join up with me on this next one. Look at the money you can make. Look at the money I have made.” You look. What he says is true. He HAS won big contracts and made beaucoup bucks. And you

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Get Big Government Contracts with Joint Ventures (Part I).

Many DBEs or MWBEs starting out don’t understand what joint ventures are, how they work or why they’re important. This lack of knowledge can get you into big trouble and make joint ventures a dangerous proposition. You may have a vague sense of what “joint venture” means—working together with someone else on something—but if you’ve never

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