How to Avoid A Size Protest

Many government contractors are getting up to speed on teaming arrangements and making better use of subcontracting agreements. However, the the plan is shuttered when a SBA size protest is launched. The risk of losing the contract becomes a reality. What can you do to prevent this?

Know the size limitations for the specific NAICS code. The key is that to survive a size protest, the combined revenues (if not employees) can not surpass the size limitation.

When you meet with a prospective teaming partner or subcontractor, this information should be disclosed. or go to Dunn and Bradstreet to see if you can find the information.

When the size protest is filed, the burden is now up to you to defend yourself. A proposed teaming agreement or subcontract does not save you. You have to also get past the ostensible subcontractor rule.

There are many reasons that you can get caught in a bid protest. Some examples can be providing to much control to a subcontractor, allowing the teaming partner tp fulfil the key aspects of the contract, being totally dependent upon the other contractor.

Participants in the SBA 8a Business Development Program must be particularly careful in these types of bid protests. Although in the 8a Program, statistics show that the SBA frequently find affiliation with 8a companies. You should consider hiring an experienced bid protest attorney to protect your rights.

The SBA is the ultimate decision maker when it comes to size determinations. However, a disastrous result can substantially harm your business. It is often wise to analyze your specific situation if you are contemplating teaming up with another business to pursue a particular government contract. In the investment in this type of legal analysis is far better than sacrificing your award to the perils of a size standard protest.

You must not share resources, use each other’s employees etc. If you are in this position and need help our office is available to represent you. Call us Toll Free at 1-866-601-5518 or  at (720) 941 7200.

Government Teaming Arrangements – Avoid Protests Based On Improper Teaming Arrangements

Our office receives tons of calls from government contractors who request ” a quick teaming agreement” because they have to bid on a contract in a few days. This can be challenging for attorneys who are not familiar with the SBA Protest  GAO rulings on affiliation, teaming arrangement flaws etc.

Teaming Agreements – Who is in Control?

When you decide to enter into a teaming agreement with another government contractor, be sure to analyze who really has control over the situation. Teaming arrangements can create a solid way of doing business with the government. However, if you fail to get them crafted carefully by an articulate government contracts attorney, you may find yourself subject to a size appeal to the SBA or other forms of teaming arrangement allegations.

Make sure that you find an attorney that can understand who is doing what on the team and decide whether it may pass muster if challenge.

FAR 9.6 states

9.601  Definition.

“Contractor team arrangement,” as used in this subpart, means an arrangement in which-

(1) Two or more companies form a partnership or joint venture to act as a potential prime contractor; or

(2) A potential prime contractor agrees with one or more other companies to have them act as its subcontractors under a specified Government contract or acquisition program.

9.602  General.

(a) Contractor team arrangements may be desirable from both a Government and industry standpoint in order to enable the companies involved to-

(1) Complement each other’s unique capabilities; and

(2) Offer the Government the best combination of performance, cost, and delivery for the system or product being acquired.(b) Contractor team arrangements may be particularly appropriate in complex research and development acquisitions, but may be used in other appropriate acquisitions, including production.

(c) The companies involved normally form a contractor team arrangement before submitting an offer. However, they may enter into an arrangement later in the acquisition process, including after contract award.

9.603  Policy.

The Government will recognize the integrity and validity of contractor team arrangements; provided, the arrangements are identified and company relationships are fully disclosed in an offer or, for arrangements entered into after submission of an offer, before the arrangement becomes effective. The Government will not normally require or encourage the dissolution of contractor team arrangements.

9.604  Limitations.

Nothing in this subpart authorizes contractor team arrangements in violation of antitrust statutes or limits the Government’s rights to-

(a) Require consent to subcontracts (see Subpart 44.2);

(b) Determine, on the basis of the stated contractor team arrangement, the responsibility of the prime contractor (see Subpart 9.1);

(c) Provide to the prime contractor data rights owned or controlled by the Government;

(d) Pursue its policies on competitive contracting, subcontracting, and component breakout after initial production or at any other time; and

(e) Hold the prime contractor fully responsible for contract performance, regardless of any team arrangement between the prime contractor and its subcontractors

As you decide to enter in a teaming agreement with another government contractor, get the advise you need to make educated decisions. Contact our office at 1-866-601-5518.

Avoid Costly Mistakes in Performanced Based Government Contacts

By: Theodore Watson, Esq

Overview

The federal government has now mandates that certain service contracts be performed and procured on a performance based basis. This means that the days of telling the contract how to do every single aspect of the contract  are over for the most part.

The Concept

Performance based contracting has been around for over two decades. However, during 2003 and 2006 there has been more of a push to changing the way the government does business.  As a result training is becoming a large requirement. Our office has stepped up to the plate and is available to provide training to contractors, federal and state agencies in this area.

Many state governments are now struggling to adopt the new concept due to the fact of receiving government grants or other government funding. The nation as a whole is far behind in the concept and there is more of a need for performance based training.

What is performance based contracting?

Performance based contracts focus on the seven steps to performing the contract. Trainers for these types of acquisitions should focus in this area. As the government post their new opportunities you will see the trend and development in performance based performance work statements (PWS). Some still tell the contractor what to do and how to do it. However , the government’s performance work statements are getting better overall.

• Agency should not dictate to the contractor how to perform the contract
• The government should focus on results only
• Agency should grade the contractor on its own quality assurance plan
• Contractor’s quality control becomes a changing document thorughout the contract life cycle

Applicable Federal Rules

FAR Part 37 governs the majority of guidelines for performance  based contracting. One article claims that performance based contracting is difficult on the commercial industry. However, other studies show that both the government and the contractor saves money. There is an argument to be made that the contractor can benefit form the new guideline as compared to when the government dictated materials, how -to etc. The biggest finding is that the government saves money. If this is true, then an argument can also be made that the economy as a whole wins.

Past performance “report cards” per FAR 42.15 should reflect adherence to performance requirements when a PWS has been used. Performance under PBSC provides better data for evaluation of past performance under other solicitations. A powerful incentive of excellence and customer satisfaction is created when contractors know their performance will influence future award decisions.

There are many critics of performance based contracts against OMB. However, when there is change, there are critics. The truth of the matter is that if the government has been paying more for government contract awards, then change is needed where performance based contracts saves tax payers dollars.

Problems with government Solicitations and RFPs – Avoid Mistakes

Many federal service contracts are offered to the public under performance based standards. Many contractors typically do not understand the statements of work as written in the RFP or solicitation. This results in a proposal that may be rejected. Other problems include:

• Misunderstanding of Quality Assurance Surveillance Plans (QASP)
• Belief that your common commercial quality assurance plan will suffice
• Understanding how pricing can directly relate to the government’s requirements

If you are a government contractor that is involved in government service contracts, you may want to get ahead of the game and invest in your performance based contracts training. It will be mandatory soon. For further information or guidance, contact our office or call us at 1-866-601-5518 / 720.941.7200.

Ostensible Subcontractor Rule &  Size Standard Affiliation 

Avoid Common Pitfalls That Can Cost You Your Contract

By: Theodore Watson, Esq

Government contractors are allowed to join forces whether by teaming agreements, traditional prime-sub relationships. FAR 9.6 provides for this type of relationship. However, under the Ostensible Subcontractor Rule, the pitfalls of affiliation lie in wait for contractors that are not familiar with the law. Simply having a well-crafted teaming agreement is not the end of the analysis. Companies can work together to complete a specific contract. However, even an improperly drafted teaming agreement can cause the partners to be deemed affiliated. Thus, forfeiting the contract to a successful size protest.

As a side issue, and contrary to even some lawyers’ belief, you can submit the past performance of you subcontractor in your proposal. Only if the government will not consider such past performance, will the solicitation so state. However, as a prime contractor you must be careful and the items passed on to your subcontractor/ teaming partner.

Under the Ostensible subcontractor Rule, complete control must and daily management must be vested in the prime contractor (oftentimes a small business). This is just the first inquiry into affiliation.  As a matter of process, the Small Business Administration (SBA) is the final authority for affiliation and Ostensible Subcontractor Rule determinations.  In sum,  the government may find parties of a teaming arrangement to be “affiliated” for purposes of size standards, where the proposed prime contractor  is overly reliant on its teaming partners or the tasks and areas of responsibility of the parties are not clearly delineated.

What is an ostensible subcontractor? A subcontractor that performs primary and vital requirements of the contract or A sub that the prime is unusually reliant upon.

How do it is determined that such an arrangement exists? The SBA uses a “Seven Factor” test to determine the size status of the prime/sub relationship. However, these seven factors are not conclusive. In a Size standard protest or affiliation analysis, the totality of the circumstances is the catch-all test.

What happens if affiliation exists? If an ostensible subcontractor arrangement exists, the SBA will consider the revenue of both firms in determining if they meet the size standard for specific NAICS code assigned to the project. If the combined revenue of the two companies exceed the size standard, then the company (prime) would be considered a large business for the purpose of the current procurement. Hence. Forfeiting the contract.

The “ Seven Factor” test for Ostensible Subcontractor Rule Analysis

• Which party will be managing the contract?
• Which party possesses the requisite background and expertise to carry out the contract?
• What party pursued the contract award?
• What degree of collaboration was there on the proposal effort?
• Were the tasks allocated to be performed by each party or is there commingling of personnel and material?
• What is the amount of work to be performed by each party?
• Which party will perform the more complex and costly contract functions?

The key to avoiding the pitfalls of affiliation is to have an experienced government contracts lawyer to provide you with concrete advice in your specific situation.

Key Points

Teaming agreements should specifically identify the roles of the prime contractor and subcontractor. Having an attorney provide advice about the pitffalls in the Ostensible Subcontractor Rule analysis.

Small businesses in particular should be careful when entering into a teaming agreement or Joint Venture agreement with large businesses. This is the typical the typical arrangement that falls prey to violation of affilication rules.

How does SBA determine affiliation?

Concerns and entities are affiliates of each other when one controls or has the power to control the other, or a third party or parties controls or has the power to control both. SBA considers factors such as ownership, management, previous relationships with or ties to another concern, and contractual relationships, in determining whether affiliation exists. In determining the concern’s size, SBA counts the receipts, employees, or other measure of size of the concern whose size is at issue and that of all of its domestic and foreign affiliates, regardless of whether the affiliates are organized for profit. For more information on how SBA determines affiliation, see 13 CFR 121.103.

I am convinced a firm which bid in competition with me on a Federal set-­aside procurement is not a small business. How can I prevent it from receiving the award?  If you are a small business bidder, you are an interested party in this procurement. Once the apparently successful offeror has been identified on a Request for Proposals or at a bid opening, you may challenge your competitor’s small business self-certification. Notify the contracting officer of the matter according to the procedures set forth in 13 CFR §§ 121.1001-1010. Your challenge must be timely and set forth specific alleged grounds. The contracting officer is required to forward the challenge to SBA for a size determination. To seek the help of a size protest attorney, click here or call toll free 1-866-601-5518..

I would like to protest the award based on the fact that the firm was not an eligible small business. What should I do? To file a size protest, you must: 1) be an eligible unsuccessful bidder for the procurement awarded to the small business; 2) file your protest within 5 days after notice of award with the Federal agency and contracting officer; 3) state specific grounds upon which the firm awarded the contract was not eligible; and 4) offer information in support of your protest. For more information, see 13 CFR §§ 121.1001-1010.

In sum, always be aware that a well-drafted teaming agreement does not in itself save you from forfeitng your contract under the SBA affiliaiton law or the Ostensible Subcontractor Rule. Call 1866-601-5518.for help.

Service Disabled Veteran Government Contracts

If you are service disabled veteran small business (SDVOSB), the government has now advanced by providign a separate setaside for you. However, like the 8a and HUBzone categories of the FAR, you are not guaranteed a federal contract.

Many large businesses are actively seeking service disabled veteran business for teaming arrangements and joint ventures in hope of landing a government contract. This a favorable result if the veteran has sound consulting of legal counsel. Why is this? Because GAO and the SBA are also flooded with more size appeals and bid protest since the new focus arose a few years ago.

Get sound government contract legal advice

If you are a service disabled veteran now seeking to acquire a government contract, you must also know the affilation rules that could cost you a large contract. Don’t fall to the temptation of drafting a quick teaming contract for the simple sake of just presentment to the government.

Remember, anyone can pretty much protest a contract award if they meet the GAO or FAR requirements. although you are a service disabled veteran, you are still subject to the federal procurement rules.

Having a government contract lawyer review or draft a teaming contract or viable subcontract will help because such an agreement should contain the main pitfalls of the ostensible contractor rule.

Should I form a teaming arrangment as a service disabled veteran?

Teaming arrangements are encouraged. However, they can be abused and small service disabled verteran small business must be wary of cold calls from large businesses seeking quick teaming arrangements.

You must still meet the control, performance thresholds set forth in the small business program and federal procurement rules.

Our government contract consultants and attorneys handle a wide array of government small business legal compliance clients across the nation. If you need immediate help, feel free to contact us at (720) 941 7200.

Asbestos is a fibrous material with high tensile strength and flexibility, widely used for its resistance to heat, chemicals and electricity. In the construction industry, asbestos is typically found in installed products such as pipe insulation, floor tiles, fire-resistant drywall and acoustical products.
Because of the many health and safety dangers associated with the inhalation of asbestos, the United States Occupational Safety and Health Administration (OSHA) has issued an “Asbestos Standard for the Construction Industry” regulation, which governs asbestos exposure for certain construction activities.

The Dangers of Asbestos
When a person inhales or ingests airborne asbestos particles, the particles can become embedded in the tissues of the digestive or respiratory systems. Exposure to asbestos can cause disabling or fatal diseases such as:

• Asbestosis: Scarring of lungs resulting in loss of lung function
• Mesothelioma: Cancer affecting the membranes lining the lungs and abdomen
• Lung cancer
• Gastrointestinal cancer

The symptoms associated with these diseases generally do not appear for 20 or more years after the initial exposure, and often progress to disability and death.

Asbestos in the Construction Industry
In order to avoid health risks, few products containing the fibrous material are currently installed in construction projects. Yet, due to its previously widespread use, asbestos exposure still occurs frequently during its removal, and in renovation and maintenance projects involving structures that contain asbestos. Governmental agencies estimate that 1.3 million employees in construction and general industry are exposed to significant levels of asbestos on the job. However, the greatest exposure to asbestos occurs during renovation or demolition projects, where asbestos must be removed.

OSHA’s “Asbestos Standard for the Construction Industry”
OSHA has issued regulations that govern a wide variety of construction workplace issues. Specifically related to asbestos exposure, OSHA has put into effect an “Asbestos Standard for the Construction Industry.” Among other measures, OSHA’s Standard regulates asbestos exposure for the following construction activities:

• Demolishing or salvaging structures where asbestos is present
• Removing or encapsulating asbestos-containing material (ACM)
• Constructing, altering, repairing, maintaining or renovating asbestos-containing structures or substrates
• Installing asbestos-containing products
• Cleaning up asbestos spills and emergencies
• Transporting, disposing, storing, containing and housekeeping involving asbestos or asbestos-containing products on a construction site

OSHA’s Standard sets a strict maximum exposure limit and establishes provisions that address the following requirements:

• Engineering controls and respirators
• Protective clothing
• Exposure monitoring
• Hygiene facilities and practices
• Warning signs and hazard communication
• Proper labeling and record-keeping
• Medical exams

Classification System Based on Work Class
The OSHA Standard utilizes a classification system for the regulation of asbestos construction work, distinguishing between four work classes. Depending on work class, employers must comply with a specific set of safety precautions to ensure that employees avoid exposure to asbestos fibers surpassing the permissible exposure limits. Further, employers must take adequate precautions if asbestos fibers are likely to be released during the performance of a particular job.

Class I workers are the most strictly regulated work class, due to the high risk nature of their job duties (which involves the removal of thermal system insulation and surfacing material containing greater than 1% asbestos).

State Regulation
In addition to the standards set by OSHA, states may also regulate work conducted near asbestos or the removal of asbestos materials. In fact, the Occupational Safety and Health Act of 1970 encourages states to develop and operate their own OSHA-approved job safety and health plans, which must adopt standards either identical to or as effective as the federal OSHA standards.

New York is one state that has instituted its own program regulating work conducted near asbestos and the removal of asbestos. New York’s program requires licensing of contractors, certification of all persons working on asbestos projects, filing of notifications for large asbestos projects, and pre-demolition surveys to identify the existence of asbestos-containing materials.

Qualifying Information as a Trade Secret

Generally, a “trade secret” is any confidential information held by a business which gives the business an advantage over competitors in the marketplace. Trade secrets are a form of intellectual property. However, they are not offered the same types of protection as patents, copyrights or trademarks. Obligations to refrain from disclosing trade secrets to others arise through contractual or fiduciary relationships.

Trade secrets are defined and regulated by state law. Only information which is held to be a trade secret under state requirements will be protected from infringement under the applicable trade secret laws. Once qualified as a trade secret, the information may not be stolen, copied, misappropriated or disclosed without the consent of the owner.

Trade Secrets in General
Trade secrets are treated as valuable property and the holder of the information is considered the owner. As with other forms of property, trade secrets may be lost, stolen or sold by one business to another. However, unlike other forms of intellectual property, trade secrets may not be registered with the government and are generally only protected if they actually qualify as trade secrets and if affirmative acts are taken by the owner to keep the information confidential.

If the aforementioned requirements are met, the trade secret is protected indefinitely as long as it remains confidential. Should the trade secret ever become available to the public, protection is lost and the information is free for anyone to use.

Information Which Qualifies as a Trade Secret
Whether information qualifies as a trade secret is dependent upon state law. However, a trade secret generally includes any oral or written secret information held by a business that offers the business a commercial advantage. Different courts might consider different factors when determining whether certain information amounts to a trade secret.

Typical factors may include:

• The extent to which the information is known outside of the particular business entity;
• The extent to which the information is known by employees and others involved in the business;
• The extent to which measure have been taken to guard the secrecy of the information;
• The value of the information to the business; and
• The difficulty with which the information could be property acquired or independently duplicated by others.

Examples of trade secrets may include business plans, sales strategies, customer lists, source code listings, methodologies, formulas, patterns, physical devises and/or ideas.

Actions to Protect Trade Secrets
Simply because the information is of a “type” which qualifies as a trade secret under state law does not result in automatic protection. The business or owner of the secret must take action indicating their desire to keep the information from competitors and out of the public domain. If reasonable precautions are not taken to protect the information, a court may find that the information is not a trade secret.

Depending upon state law requirements, the owner may take the following measure to ensure trade secrecy:

• Entering into non-disclosure agreements or contracts;
• Restricting access to information to certain individuals;
• Protecting secrecy through physical security;
• Marking trade secret documents with “Confidential”; and
• Adopting reasonable password policies and other computer security.

An example of an extreme case is the protection measures taken by the Coca-Cola Company. The formula to the Coca-Cola soft drink is one of the best kept trade secrets in the world. The soda’s formula is only known by two employees at any given time, whose identities are unknown to the public and who may not fly on the same plane. Further, the written formula is locked in a vault which may only be opened by a resolution of the Coca-Cola board of directors.

However, even Coca-Cola is not immune from trade secret theft. In February of 2007, a former secretary at Coca-Cola was found guilty of conspiring with two men to steal confidential documents and samples of a new product, which they offered to sell to rival PepsiCo for at least $1.5 million.

Rights of Trade Secret Owners
Trade secrets are intellectual property. Owners of information qualifying as a trade secret are thus entitled to certain property rights. Trade secret may prevent the use, disclosure or copying of the information by certain individuals without permission.

For example, employees of a business are typically considered to be automatically bound by a duty of confidentiality when they come into contact with a trade secret as part of their employment. Also, any individual who breaches a nondisclosure agreement, misuses the information or uses illegal means to obtain it may be liable for trade secret infringement. If infringement exists, the owner of the trade secret may be able to obtain a court order to prevent further disclosure, monetary damages for any loss resulting from the disclosure, and/or punitive damages.

However, if the information was discovered legally and does not otherwise violate any agreement, such as through reverse engineering, the secret is lost and the information is no longer protected.

Under the Uniform Trade Secret Act (UTSA), adopted by a vast majority of the states, a “trade secret” is information (including a formula, pattern, compilation, program, device, method technique or process), not generally known, that derives independent economic value for its owner. Since trade secrets provide businesses with a competitive advantage in the marketplace, affirmative action must be taken to preserve their secrecy.

As a form of intellectual property, owners of trade secrets retain important rights which allow them to select who may access and use their property and to protect it from unauthorized use. Thus, they may sell their rights in the trade secret. Further, trade secret owners may decide to transfer all or part of their rights to a licensee for use, while continuing to retain ownership as a licensor.

Trade Secret Licenses in General
In general, a trade secret license is a private agreement whereby the owner (licensor) grants the recipient (licensee) with permission to use some or all of the secret information. However, the licensor retains full title and all ownership rights associated with the trade secret. A license is typically issued by the licensor with the intent to benefit by maximizing their profit (in the form of royalties) on the trade secret. This benefit comes with the risk of disclosure from sharing their secret information with another party.

A license may be exclusive, granting the licensee sole use of the trade secret, or non-exclusive, granting the licensee only shared use. Under a non-exclusive license, the licensor retains the right to use the trade secret and/or to grant additional licenses to others. The licensee’s right to use the trade secret can be granted either for an indefinite or for a defined period of time. The license may be revoked if the licensee fails to comply with the terms of the licensing agreement.

Validity of a Trade Secret Licensing Agreement
In general, a license may cover anything that is negotiated between the contracting parties. A license to use trade secret information, such as a formula, may address the use of all or part of the secret and may cover the following topics:

• Subject matter of the trade secret
• Installation procedures to effectuate use of the information
• Methods of production
• Machine operations
• Compensation for use of the information
• Security codes to access information

The licensing agreement may not violate the federal Antitrust Guidelines for the Licensing of Intellectual Property. These Guidelines recognize and promote the protection of all intellectual property but prohibit any licensing arrangements which “unreasonably” restrain competition in the marketplace (e.g., facilitating price fixing or market division). Generally, the license may not be “facially anticompetitive” and the parties involved may not account for more than 20% of the relevant market.

Nondisclosure/Confidentiality Agreement
Unlike most forms of intellectual property, trade secrets may not be registered with the government for protection. Thus, protection of a trade secret lasts only as long as the information is kept secret. Trade secret owners (and licensors) must take affirmative steps to help ensure that their trade secret remains confidential. Upon licensing a trade secret, the licensor typically requires the licensee to read a sign a written nondisclosure agreement.

Generally, the nondisclosure agreement clearly defines the trade secret and limits disclosures to the purposes agreed upon by both parties. By signing the agreement, the licensee accepts the express duty to preserve the secrecy of the information they are licensing. It is typical for the nondisclosure agreement to extend past its date of expiration.

Licensor’s Compensation for the Use of Their Trade Secret
The owner of a trade secret is usually paid royalties as consideration for granting the licensee use of the information. A “royalty” is a percentage of the profits the licensee makes on the use of the trade secret. The amount of royalties is negotiated by the parties and specified in the licensing agreement.

As mentioned, protection of trade secrets lasts only as long as the information remains a secret. However, a trade secret which has been licensed forever similarly obligates the licensee to pay royalties forever. Thus, even if the information enters the public domain (i.e., becomes free for anyone to use), the licensee may still be obligated to pay royalties for their own use. Although this is a risk associated with the licensee’s ability to gain a head-start, or competitive advantage in the marketplace, it also provides a significant benefit to the licensor.

Colorado Family Law Statutes Links

The following Colorado family law statutes are directly stated from the Colorado state links. If you are on our Denver family law attorneys page, for ease of looking at the family law statutes, please click on the below links. For help and legal advice for families going though a divorce, child custody litigation or other family law case, contact the lawyers at Watson & Associates, LLC for immediate representation. Call 720-941-7200.

Actions. Abolition of certain marital actions. Breach of contract to marry. Not actionable, § 13-20-203. Civil causes of action abolished, § 13-20-202. Correspondents, § § 13-20-206, 13-20-207. Legislative declaration, § 13-20-201. Unlawful to file pleadings, § 13-20-205. Violations of provisions. Misdemeanor, § 13-20-208. Affidavits. Dissolution of marriage. Requirements for dissolution upon affidavit, § 14-10-120.3. Age. Licenses. Proof of age, § 14-2-106. Underaged parties. Judicial approval of marriage license, § 14-2-108. Agreements. Antenuptial agreements. See within this heading, “Marital agreements”. Premarital agreements. See within this heading, “Marital agreements”.

Separation agreement. See within this heading, “Separation agreement”. Annulment of marriage. Intestate succession and wills. Effect of annulment, § 15-11-802. Invalidity of marriage. See within this heading, “Invalidity of marriage”. Revocation of probate and nonprobate transfers, § 15-11-804. Applicability of act. Uniformity of application, § 14-2-103. Validity of marriages, § 14-2-112. Applications. Licenses, § 14-2-105. Bigamy. General provisions, § § 18-6-201 to 18-6-203. See BIGAMY. Prohibited marriage, § 14-2-110. Blood tests, § 14-2-106. Breach of contracts. See BREACH OF CONTRACTS. Certificates. County clerk and recorder. Failure to forward marriage certificate to office. General provisions, § 14-2-109. Late fee, § 14-2-109. Form, § 14-2-105. Heirloom certificates, § 25-2-122. Physician’s certificate required, § 14-2-106. Solemnization of marriages. Completion of marriage certificate form, § 14-2-109. Child custody.

Child abduction prevention act, uniform, § § 14-13.5-101 to 14-13.5-112. See PARENTAL RESPONSIBILITY. Child support. See SUPPORT AND MAINTENANCE. Common law marriage restrictions. Age restrictions, § 14-2-109.5. Formalities, § 14-2-104. Community property. Disposition of community property rights at death, § § 15-20-101 to 15-20-111. See DECEDENTS’ ESTATES. Compromise and settlement. Women. Article not to affect marriage settlements, § 14-2-204. Consent. Parental consent, § 14-2-106. Construction and interpretation. Dissolution of marriage. See within this heading, “Dissolution of marriage”. Rules of construction, § 14-2-102. Uniformity of construction, § 14-2-103. Consumer credit code. Discrimination on the basis of marital status. Prohibition against discrimination, § 5-5-206. Contracts. See CONTRACTS. Conveyances. Husband cannot convey wife’s lands, § 14-2-206. Wife may convey lands as if sole, § 14-2-207. Counseling. Domestic relations counselors. Appointment, § 14-12-102. Assistants, § 14-12-102. Communications confidential, § 14-12-105. Duties, § 14-12-104. Legislative declaration, § 14-12-101. Marriage and family therapists. See within this heading, “Marriage and family therapists”. Proceedings to be private, § 14-12-105. Term, § 14-12-102. County clerks. Certificate of marriage, § 14-2-109. Decedents’ estates. Community property. Disposition of community property rights at death, § § 15-20-101 to 15-20-111. See DECEDENTS’ ESTATES. Decrees. Dissolution of marriage. See within this heading, “Dissolution of marriage”. Legal separation. See within this heading, “Legal separation”. Defenses. Dissolution of marriage. Abolition of existing defenses, § 14-10-107. Definitions. Dissolution of marriage, § 14-10-103. Discrimination. Discrimination in advertising, § § 24-34-701 to 24-34-707. See ADVERTISING. Discrimination in employment, § 24-34-402. Discrimination in housing, § § 24-34-501 to 24-34-509. See HOUSING. Discrimination in places of public accommodation, § § 24-34-601 to 24-34-605. See PUBLIC ACCOMMODATIONS. Dissolution of marriage. Affidavits. Requirements for dissolution upon affidavit, § 14-10-120.3. Applicability of article, § § 14-10-104, 14-10-133. Automatic, temporary injunction, commencement of proceedings, § 14-10-1107. Child custody. See PARENTAL RESPONSIBILITY. Child support, § 14-10-115. See SUPPORT AND MAINTENANCE. Construction and interpretation. Rules of construction, § 14-10-102. Terms, § 14-10-103. Uniformity of application and construction, § 14-10-104. Decision-maker, court appointed. Appointment of, § 14-10-128.3. Duties, § 14-10-128.3. Testimony by, § 14-10-128.3. Decree of dissolution. Conversion of decree of legal separation to decree of dissolution of marriage, § 14-10-120. Definition, § 14-10-103. Finality of decree, § 14-10-120. Foreign decrees. How handled, § 14-11-101. Independence of provisions, § 14-10-121. Marital property. Definition, § 14-10-113. Notice of entry of decree, § 14-10-120. Order for income assignment, § 14-10-120.

When district court may enter, § 14-10-106. Defenses. Abolition of existing defenses, § 14-10-107. Definitions, § 14-10-103. Displaced homemakers fund, § § 8-15.5-108, 14-10-120.5. Educational programs for parents, § 14-10-123.7. Effective date of article, § 14-10-133. Evaluations and reports, § 14-10-127. Fees. Attorney fees, § 14-10-119. Petition for dissolution of marriage. Assessment of fee, § 14-10-120.5. Foreign decrees. Handling of, § 14-11-101. Injunctions. Automatic, temporary injunction, commencement of proceedings, § 14-10-1107. Independence of provisions of temporary injunction, § 14-10-121. Interim decision-making responsibility, § 14-10-108. Issuance of temporary injunction, § 14-10-108. Limitations on temporary injunction, § 14-10-108. Preventing molestation of parties. Enforcement, § 14-10-107. Interim decision-making responsibility, § 14-10-108. Intestate succession. Effect of dissolution, § 15-11-802. Invalidity of marriage. Declaration of invalidity, § 14-10-111. Irretrievable breakdown, § 14-10-110. Long arm statute, § 13-1-124. Orders. Decision-maker, court appointment of, § 14-10-128.3. Duty to disclose prior restraining orders, § 14-10-107.8. Parenting coordinator, appointment of, § 14-10-128.1. Temporary protection order. Duty to disclose prior protection orders, § 14-10-108. Enforcement, § 14-10-109. Independence of provisions, § 14-10-121. Interim decision-making responsibility, § 14-10-108. Issuance, § 14-10-108. Limitations, § 14-10-108. Peace officers’ duties, § 14-10-109. Temporary orders, § 14-10-108. Parental responsibility. See PARENTAL RESPONSIBILITY. Parenting coordinator. See PARENTAL RESPONSIBILITY. Parenting plan. See PARENTAL RESPONSIBILITY. Petitions. Contents, § 14-10-107. Domestic violence services. Court to advise, § 14-10-107.8. Fee assessment, § 14-10-120.5. Notice of prior restraining orders, § 14-10-107.8. Notice of receipt of public assistance. When petition seeks an order of child support, § 14-10-107.7. Proceedings. Attorney fees, § 14-10-119. Commencement of proceedings, § 14-10-107. Entry of appearance by delegate child support enforcement unit, § 14-10-107.5. Initiating party, § 14-10-107. Petitions. Contents of petition, § 14-10-107. Fee assessment, § 14-10-120.5. Service of process, § 14-10-107. Property. Disposition of property, § 14-10-113. Marital property, § 14-10-113. Modification and termination of provisions of property division, § 14-10-122. Purposes of article, § 14-10-102. Revocation of probate and nonprobate transfers, § 15-11-804. Rules of civil procedure. Application of, § 14-10-105; C.R.C.P. 81(b). Rules of construction, § 14-10-102. Separation agreement. See within this heading, “Separation agreement”. Service of process. Commencement of proceedings, § 14-10-107. How service may be made, § 13-1-125. Long arm statute, § 13-1-124. Support and maintenance. Grounds for which court may grant, § 14-10-114. Legislative declaration, § 14-10-114. Modification of provisions, § 14-10-122. Payment of maintenance or support to court or through family support registry, § 14-10-117. Representation of child, § § 14-10-116, 14-10-116.5, 14-10-128.1. Temporary maintenance, § 14-10-114. Termination of provisions, § 14-10-122. Temporary protection order. Enforcement, § 18-6-803.5. Peace officers’ duties, § 18-6-803.5. See within this heading, “Orders”. Title of act, § 14-10-101. Uniform dissolution of marriage act, § § 14-10-101 to 14-10-133. Vital statistics, § 25-2-107. District courts. Dissolution of marriage. Decree of dissolution. When district court may enter, § 14-10-106. Legal separation. Decree of legal separation. When district court may enter, § 14-10-106. Divorce. See within this heading, “Dissolution of marriage”. Domestic abuse. Domestic abuse programs. See DOMESTIC ABUSE PROGRAMS. Domestic violence generally. See DOMESTIC VIOLENCE. Domestic relations counselor. Counseling. See within this heading, “Counseling”. Domicile. Married women. Inapplicability of common law rule, § 14-2-210. Elections. Change of name. Registration, § 1-2-218. Examinations. Waiver of requirements for medical examination, § 14-2-106. Family expenses. General liability for family expenses, § 14-6-110. Fees. Dissolution of marriage. Attorney fees, § 14-10-119. Petition, § 14-10-120.5. Licenses, § 14-2-106. Formalities. Valid marriage, § 14-2-104. Frauds, statute of. Void agreements and contracts, § 38-10-112. Incest. General provisions, § § 18-6-301, 18-6-302. See INCEST. Marriage prohibited by consanguinity, § 14-2-110. Injunctions. Dissolution of marriage. See within this heading, “Dissolution of marriage”. Intestate succession, § 15-11-802. Invalidity of marriage. Dissolution of marriage, § 14-10-111. Foreign decrees. Handling of, § 14-11-101. Intestate succession and wills. Effect on, § 15-11-802. Reports. Department of public health and environment. Powers and duties, § 25-1.5-101. Revocation of probate and nonprobate transfers, § 15-11-804. Irretrievable breakdown. Dissolution of marriage, § 14-10-110. Judgments and decrees. Dissolution of marriage. Decree of dissolution. See within this heading, “Dissolution of marriage”. Legal separation. Decree of legal separation. See within this heading, “Legal separation”. Women. Lands subject to judgment, § 14-2-205. Legal separation. Decree of legal separation. Conversion of decree of legal separation to decree of dissolution of marriage, § 14-10-120. Finality of decree, § 14-10-120. Foreign decrees. Handling of, § 14-11-101. Order for immediate deductions for family support, § 14-10-120. When district court may enter, § 14-10-106. Defenses. Abolition of existing defenses, § 14-10-107. Educational programs for parents, § 14-10-123.7. Proceedings, § 14-10-107. Rules of civil procedure. Applicability, § 14-10-105; C.R.C.P. 81(b). Separation agreement. See within this heading, “Separation agreement”. Licensed marriage and family therapists. See within this heading, “Marriage and family therapists”. Licenses. Age. Proof of age, § 14-2-106. Underaged parties. Judicial approval of marriage license, § 14-2-108. Application, § 14-2-105. Blood tests, § 14-2-106. Cancellation, § 14-2-107. Fees, § 14-2-106. Information to be furnished, § 14-2-106. Issuance. Underaged parties. Judicial approval required, § 14-2-108. Validity of license issued, § 14-2-107. When licenses to marry issued, § 14-2-107. Who may issue license, § 14-2-107. Parental consent, § 14-2-106. Physicians and surgeons, § 14-2-106. Tests, § 14-2-106. Voidance, § 14-2-107. Long arm statute. Dissolution of marriage, § 13-1-124. Loss of consortium. Women. Right of wife to recover, § 14-2-209. Maintenance. Support and maintenance. See within this heading, “Dissolution of marriage”. Marital agreements. Amendments, § 14-2-306. Applicability of statutory provisions, § 14-2-310. Child support, § 14-2-304. Content, § 14-2-304. Definitions, § 14-2-302. Effective date of agreement, § 14-2-305. Effective date of statutory provisions, § 14-2-310. Enforcement, § § 14-2-307, 14-2-308. Equitable defenses, § 14-2-309. Formalities, § 14-2-303. Invalid marriage, § 14-2-308. Revocation of agreement, § 14-2-306. Revocation of benefits upon death, § 14-2-304. Title of act, § 14-2-301. Tolling of statute of limitations, § 14-2-309. Waiver of rights upon death, § 14-2-304. What may be contracted, § 14-2-304. Marriage and family therapists. Agreement to limit practice, § 12-43-221.5. Board of examiners. Confidential agreement to limit practice, § 12-43-221.5. Creation in department of regulatory agencies, § § 12-43-502, 24-1-122. Duties and powers, § § 12-43-203, 12-43-504. Immunity, § 12-43-203. Judicial review, § § 12-43-217, 13-4-102. Limitations on authority, fee disputes between licensee and other party, § 12-43-203.5. Meetings, § 12-43-203. Membership, § 12-43-502. Professional review committees, § 12-43-203. Reconsideration of board action, § 12-43-225. Records, § 12-43-205. Removal of members, § § 12-43-203, 12-43-503. Supervision by division of registrations, § § 12-43-210, 12-43-502. Termination, § § 24-34-104, 12-43-229, 12-43-502. Collaboration with physician, § 12-43-209. Confidential communications, § 12-43-218. Continuing professional competency, § 12-43-506. Definitions, § § 12-43-201, 12-43-501. Disciplinary actions, § 12-43-224. Disclosure of information about health care licensees, § 24-34-110. Disclosure of information, § 12-43-214. Fraudulent insurance acts, § § 10-1-128, 12-43-222. Generally, § § 12-43-201 to 12-43-229, 12-43-501 to 12-43-506. Health care credentials uniform application act, § 25-1-108.7. Injunctions, § 12-43-227. Insurance reimbursement, § 10-16-104. Licensure. Candidate for licensure, § 12-43-504. Denial, § 12-43-212. Examination. General provisions, § 12-43-504. Legislative intent for educational requirements, § 12-43-213. Fees, § 12-43-204. Issuance of, § § 12-43-207, 12-43-504. Licensure by endorsement, § 12-43-206. Professional competency requirements, § 12-43-506. Qualifications, § 12-43-504. Renewal, § § 12-43-204, 12-43-212. Rights and privileges of licensure, § 12-43-505. Limited liability companies, § 12-43-211. Limited liability partnerships, § 12-43-211. Minimum standards for psychometric or electrodiagnostic testing, § 12-43-228. Practice defined, § 12-43-503. Privileged communications. Child abuse exception, § 19-3-311. Who may not testify without consent, § 13-90-107. Professional review committees, § 12-43-203. Professional service corporations, § 12-43-211. Prohibited activities. Administration of drugs, § 12-43-208. General provisions, § 12-43-222. Practice outside of or beyond training, experience, or competence, § 12-43-202. Treatment of medical problems, § 12-43-209. Provider networks. Exception to prohibition on corporate professional practice, § 6-18-303. Provisional license, § 12-43-206.5. Title use restrictions, § § 12-43-216, 12-43-505. Misdemeanors. Violation of uniform marriage act, § 14-2-113. Names. Elections. Change of name. Registration, § 1-2-218. Orders. Dissolution of marriage. See within this heading, “Dissolution of marriage”. Parent and child. Consent to marriage by parent, § 14-2-106. Parentage determination, § 19-4-103. Parental responsibility. See PARENTAL RESPONSIBILITY. Parenting coordinator. Parenting plan. Pleadings. Dissolution of marriage, § 14-10-107. Premarital agreements. See within this heading, “Marital agreements”. Presumptions. Dissolution of marriage. Marital property, § 14-10-113. Probate code. Remarriage of absentee’s spouse, § 15-10-109. Prohibited marriages. Bigamy, § § 14-2-110, 18-6-201. Degree of consanguinity, § 14-2-110. Enumeration, § 14-2-110. Invalidity, § 14-10-111. Legitimacy of children, § 14-2-110. Property. Definitions. Marital property, § 14-10-113. Dissolution of marriage. See within this heading, “Dissolution of marriage”. Women. See within this heading, “Women”. Purposes of act, § 14-2-102. Putative spouse, § 14-2-111. Registration. Certificate of marriage. County clerk to register, § 14-2-109. Remedies. Separation agreement, § 14-10-112. Reports, § § 25-1.5-101, 25-2-107. Separation agreement, § 14-10-112. Service of process. Allocation of parental responsibilities, § 14-10-107. Dissolution of marriage. Commencement of proceedings, § 14-10-107. Required specified advisements, § 14-10-107. Sexual offenses. Marital defense, § 18-3-409. Solemnization, § 14-2-109. Support and maintenance. Dissolution of marriage. See within this heading, “Dissolution of marriage”. Family expenses. Joint liability for, § 14-6-110. Tests. Examinations required. Waiver of requirements for medical examination, § 14-2-106. Title of act, § 14-2-101. Torts. Loss of consortium, § 14-2-209. Uniform dissolution of marriage act, § § 14-10-101 to 14-10-133. See within this heading, “Dissolution of marriage”. Validity of marriages. Application of act, § 14-2-112. Vital statistics. Reports. Dissolution of marriage, § § 25-1.5-101, 25-2-107. Marriage certificates, § 25-2-106. Wills. Annulment of marriage. Effect, § 15-11-802. Dissolution of marriage. Effect, § 15-11-802. Omitted spouses. Spouses married after execution of will, § 15-11-301. Women. Businesses. Rights in separate business, § 14-2-203. Contracts. Wife may contract, § 14-2-208. Domicile. Sex or marriage not a ban on right, § 14-2-210. Earnings. Sole and separate property, § 14-2-203. Loss of consortium. Right of wife to recover, § 14-2-209. May sue and be sued, § 14-2-202. Property. Conveyances. Husband cannot convey wife’s lands, § 14-2-206. Wife may convey lands as if sole, § 14-2-207. Debts of husband. Not subject to disposal of husband, § 14-2-201. Gifts from husband. Not subject to disposal for husband’s debt, § 14-2-201. Lands subject to judgment. Subject may be rendered jointly, § 14-2-205. May sue and be sued, § 14-2-202. Sole and separate property of married women, § 14-2-201. Settlements. Not affected by article, § 14-2-204.

Family law disputes in Denver, Colorado can be very traumatic and stressfull. Retain the Watson & Associates attorneys to solve your divorce, child custody litigation and other family law matters. We bring 20 years of experience to your case.

The Biggest and Most Costly Mistakes that Colorado Corporate Officers Make 

Often we see CEO’s making large career mistakes. These mistakes are the result of a divergence between fact and fiction, between what CEO’s believe they can do and the facts at hand. Costly mistakes can impact the officer personally as well as the corporation.

Being Blinded by Prestige

Many CEO’s decide to move too quickly, blinded by the prestige or scope of an opportunity. The person needs to think through two enduring truisms. He or she should be able to leave their current role with their heads held high and confident in the future of that company. Any short cuts in this regard cloud achievements and prompt questions about judgment. Before you take on a new management position in a corporate, ensure that you speak to an experienced Colorado corporate lawyer to learn your legal obligations and risks associated with the position.

Not Seeking Legal Advice of a Qualified Corporate Lawyer

When you want a sounding board for legal compliance or making the right decision, a corporate lawyer can be a valuable asset. Confidence tends to reduce the felt need to share problems. Why do so when the answer is always obvious. Great CEOs make it safe for their staff to provide candid feedback on their performance, and how to improve. They also use mentors extensively, giving time for open and honest discussions about their life journey. Poor CEO’s will generally surround themselves with people who are worse than them and seldom disagree.

Hasty Decision in Corporate Formation

If the corporate form is chosen as the preferred business entity, consideration must be given concerning where to incorporate. A common misconception among many small businesses is the idea that incorporating in Nevada or Delaware offers significant advantages. For the vast majority of corporations, this is not true. If the corporation plans to do business in Colorado, plans to maintain a sufficient presence in Colorado, or a significant number of shareholders will reside in Colorado, there is usually no reason to incorporate in any state other than Colorado, as generally Colorado corporate law will be applicable to the business, regardless of the state of incorporation. Thus, a foreign corporation with sufficient contacts in Colorado will be deemed a quasi-foreign corporation and be required to pay Colorado filing fees (as well as fees to its state of incorporation); taxes (as well as taxes of its state of incorporation); must comply with Colorado securities law; and numerous other Colorado corporate laws. Typically, corporations that may benefit from incorporating in another state are traded on the New York or American stock exchanges, or have been qualified for trading on NASDAQ and have at least 800 shareholders

Failure to Understand Colorado Corporate Liability for Business Debts

Colorado Corporations and LLCs are legal entities, separate and distinct from the people who create and own them (these people are called corporate shareholders or LLC members). One of the principal advantages of forming a corporation or an LLC is that, because the corporation or LLC is considered a separate entity (unlike partnerships and sole proprietorships), the owners and managers have limited personal liability for the company’s debts. This means that the people who own and run the corporation or LLC cannot usually be held personally responsible for the debts of the business. But, in certain situations, courts can ignore the limited liability status of a corporation or LLC and hold its officers, directors, and shareholders or members personally liable for its debts. When this happens, it is called piercing the corporate veil. Closely held corporations and small LLCs are most likely to get their veils pierced (corporations that are owned by one or just a few people are called closely held corporations, or close corporations for short).

Effects of Piercing the Corporate Veil

If a court pierces a company’s corporate veil, the owners, shareholders, or members of a corporation or LLC can be held personally liable for corporate debts. This means creditors can go after the owners’ home, bank account, investments, and other assets to satisfy the corporate debt. But courts will impose personal liability only on those individuals who are responsible for the corporation or LLC’s wrongful or fraudulent actions; they won’t hold innocent parties personally liable for company debts.

When Colorado Courts Will Pierce the Corporate Veil

Courts might pierce the corporate veil and impose personal liability on officers, directors, shareholders, or members when all of the following are true.

• There is no real separation between the company and its owners. If the owners fail to maintain a formal legal separation between their business and their personal financial affairs, a court could find that the corporation or LLC is really just a sham (the owners’ alter ego) and that the owners are personally operating the business as if the corporation or LLC didn’t exist. For instance, if the owner pays personal bills from the business checking account or ignores the legal formalities that a corporation or LLC must follow (for example, by making important corporate or LLC decisions without recording them in minutes of a meeting), a court could decide that the owner isn’t entitled to the limited liability that the corporate business structure would ordinarily provide.
• The company’s actions were wrongful or fraudulent. If the owner(s) recklessly borrowed and lost money, made business deals knowing the business couldn’t pay the invoices, or otherwise acted recklessly or dishonestly, a court could find financial fraud was perpetrated and that the limited liability protection shouldn’t apply.
• The company’s creditors suffered an unjust cost. If someone who did business with the company is left with unpaid bills or an unpaid court judgment and the above factors are present, a court will try to correct this unfairness by piercing the veil.

Factors Courts Consider in Piercing the Corporate Veil

The most common factors that Colorado courts consider in determining whether to pierce the corporate veil are:

• whether the corporation or LLC engaged in fraudulent behavior
• whether the corporation or LLC failed to follow corporate formalities
• whether the corporation or LLC was inadequately capitalized (if the corporation never had enough funds to operate, it was not really a separate entity that could stand on its own), and
• whether one person or a small group of closely related people were in complete control of the corporation or LLC.

Some Colorado corporations and LLCs are especially vulnerable when these factors are considered, simply because of their size and business practices. Closely held companies are more susceptible to losing limited liability status than large, publicly traded corporations. There are several reasons for this.

Failure to follow corporate formalities. Small corporations are less likely than their larger counterparts to observe corporate formalities, which makes them more vulnerable to a piercing of their corporate veil. To avoid trouble, it’s best to play it safe. It’s important for small corporations and LLCs to comply with the rules governing formation and maintenance of a corporation, including:

• holding annual meetings of directors and shareholders or members
• keeping accurate, detailed records (called “minutes”) of important decisions that are made at the meetings
• adopting company bylaws, and
• making sure that officers and agents abide by those bylaws.

Commingling  assets. Small business owners may be more likely than their larger counterparts to commingle their personal assets with those of the corporation or LLC. For example, some small business owners divert corporate assets for their own personal use by writing a check from the company account to make a payment on a personal mortgage — or by depositing a check made payable to the corporation into the owner’s personal bank account. This is called “commingling of assets.” To avoid trouble, the corporation should maintain its own bank account and the owner should never use the company account for personal use or deposit checks payable to the company in a personal account.

For additional help with Colorado corporate law, contact the Denver attorneys at Watson & Associates, LLC. Call 720-941-7200.