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Disadvantaged Business Enterprise Law Update

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Description

PowerPoint Presentation on Disadvantaged Business Enterprise Law with emphasis on Bid Phase of Public Contracting

Transcription

  1. 1. © 2014 Kraftson Caudle. All rights reserved. Annual Transportation Construction Law and Regulatory Forum: DBE Compliance and Case Law June 11, 2014 Jon Straw Kraftson Caudle McLean, Virginia www.kraftsoncaudle.com
  2. 2. © 2014 Kraftson Caudle. All rights reserved. Preview • Commercially Useful Function • Responsible vs. Responsive in Bid Evaluations • DBE False Claims Act Violations
  3. 3. © 2014 Kraftson Caudle. All rights reserved. Commercially Useful Function
  4. 4. © 2014 Kraftson Caudle. All rights reserved. Commercially Useful Function • Services: perform, manage, supervise • Materials & Supplies: negotiate price, determine quality and quantity, ordering, installing (if applicable), and pay for material. •49 C.F.R. 26.55(c)(1).
  5. 5. © 2014 Kraftson Caudle. All rights reserved. Hypothetical: Type of Work Omitted • Bid Form C-111 (VDOT minimum DBE requirements). • DBE goal = 25% • Lowest bidder DBE performance = 28% • But, type of work not identified for one of three DBE’s. • So, cannot count that DBE’s percentage. • Upon rebid, DBE’s work was furnishing and installing only.
  6. 6. © 2014 Kraftson Caudle. All rights reserved. Hypothetical: Overconcentration • Unsuccessful, Non-DBE Traffic Controls Contractor Bidding on State Hwy Job • Alleged overconcentration of DBEs within traffic controls industry as violation of EP Clause. • Experts argued differently: – Compare traffic controls industry to transportation construction industry. – Compare other contractors in traffic controls industry.
  7. 7. © 2014 Kraftson Caudle. All rights reserved. Responsible vs. Responsive • Consider whether jurisdiction DBE component of bid submission is judged as responsive or responsible element. – Cf., Virginia, Maryland, Illinois, D.C.
  8. 8. © 2014 Kraftson Caudle. All rights reserved. Hypothetical: Responsible vs. Responsive • Pre-bid goal = 25% • Prime had 7 DBE subs in bid (23%) and GFE. • Owner requested Prime revise DBE submission finding one sub’s percentage should have been 75% instead of 100%. • Prime revised form and added another DBE sub; Owner did not object. (25%+ now) • NOIA stated Prime was responsive and responsible. • Prime submitted another form “substituting” a DBE because removed DBE had not submitted letter of intent. (still 25%+) • Removed DBE sub still would perform other work, just not listed on form. • Prime argued 49 C.F.R. § 26.53(b)(3).
  9. 9. © 2014 Kraftson Caudle. All rights reserved. • Contractor liable if: – Knowingly does (presents or submits); OR – Knowingly does not do (withholds or non- verification). • See 31 U.S.C. § 3729
  10. 10. © 2014 Kraftson Caudle. All rights reserved. Actual DBE FCA Violations • Manafort Brothers, Inc. ($2.4M) – Structural Steel – Retaining Walls
  11. 11. © 2014 Kraftson Caudle. All rights reserved. Actual DBE FCA Violations • Schuylkill Products, Inc. ($119M + 2 years prison for executives)
  12. 12. © 2014 Kraftson Caudle. All rights reserved. Annual Transportation Construction Law and Regulatory Forum: DBE Compliance and Case Law June 11, 2014 Jon Straw Kraftson Caudle McLean, Virginia www.kraftsoncaudle.com

Notes de l'éditeur

  • Geyer Signal, Inc. v. MnDOT, 2014 WL 1309092 (USDC, D. Minn., 3/31/04).
  • Description

    PowerPoint Presentation on Disadvantaged Business Enterprise Law with emphasis on Bid Phase of Public Contracting

    Transcription

    1. 1. © 2014 Kraftson Caudle. All rights reserved. Annual Transportation Construction Law and Regulatory Forum: DBE Compliance and Case Law June 11, 2014 Jon Straw Kraftson Caudle McLean, Virginia www.kraftsoncaudle.com
    2. 2. © 2014 Kraftson Caudle. All rights reserved. Preview • Commercially Useful Function • Responsible vs. Responsive in Bid Evaluations • DBE False Claims Act Violations
    3. 3. © 2014 Kraftson Caudle. All rights reserved. Commercially Useful Function
    4. 4. © 2014 Kraftson Caudle. All rights reserved. Commercially Useful Function • Services: perform, manage, supervise • Materials & Supplies: negotiate price, determine quality and quantity, ordering, installing (if applicable), and pay for material. •49 C.F.R. 26.55(c)(1).
    5. 5. © 2014 Kraftson Caudle. All rights reserved. Hypothetical: Type of Work Omitted • Bid Form C-111 (VDOT minimum DBE requirements). • DBE goal = 25% • Lowest bidder DBE performance = 28% • But, type of work not identified for one of three DBE’s. • So, cannot count that DBE’s percentage. • Upon rebid, DBE’s work was furnishing and installing only.
    6. 6. © 2014 Kraftson Caudle. All rights reserved. Hypothetical: Overconcentration • Unsuccessful, Non-DBE Traffic Controls Contractor Bidding on State Hwy Job • Alleged overconcentration of DBEs within traffic controls industry as violation of EP Clause. • Experts argued differently: – Compare traffic controls industry to transportation construction industry. – Compare other contractors in traffic controls industry.
    7. 7. © 2014 Kraftson Caudle. All rights reserved. Responsible vs. Responsive • Consider whether jurisdiction DBE component of bid submission is judged as responsive or responsible element. – Cf., Virginia, Maryland, Illinois, D.C.
    8. 8. © 2014 Kraftson Caudle. All rights reserved. Hypothetical: Responsible vs. Responsive • Pre-bid goal = 25% • Prime had 7 DBE subs in bid (23%) and GFE. • Owner requested Prime revise DBE submission finding one sub’s percentage should have been 75% instead of 100%. • Prime revised form and added another DBE sub; Owner did not object. (25%+ now) • NOIA stated Prime was responsive and responsible. • Prime submitted another form “substituting” a DBE because removed DBE had not submitted letter of intent. (still 25%+) • Removed DBE sub still would perform other work, just not listed on form. • Prime argued 49 C.F.R. § 26.53(b)(3).
    9. 9. © 2014 Kraftson Caudle. All rights reserved. • Contractor liable if: – Knowingly does (presents or submits); OR – Knowingly does not do (withholds or non- verification). • See 31 U.S.C. § 3729
    10. 10. © 2014 Kraftson Caudle. All rights reserved. Actual DBE FCA Violations • Manafort Brothers, Inc. ($2.4M) – Structural Steel – Retaining Walls
    11. 11. © 2014 Kraftson Caudle. All rights reserved. Actual DBE FCA Violations • Schuylkill Products, Inc. ($119M + 2 years prison for executives)
    12. 12. © 2014 Kraftson Caudle. All rights reserved. Annual Transportation Construction Law and Regulatory Forum: DBE Compliance and Case Law June 11, 2014 Jon Straw Kraftson Caudle McLean, Virginia www.kraftsoncaudle.com

    Notes de l'éditeur

  • Geyer Signal, Inc. v. MnDOT, 2014 WL 1309092 (USDC, D. Minn., 3/31/04).
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