By: Theodore Watson

Who are government subcontractors?

Under FAR 44.101. Generally a subcontractor is a supplier, distributor, vendor or firm that furnishes supplies or services to the prime contractor or another subcontractor (tier). The more unique limitation of this definition usually comes under the Miller Act ( 40.U.S.C.A. § 270a. )

Does the agency have to approve a subcontractor?

An government contracting agency does not normally have to consent to subcontracts for firm-fixed-price contracts. However cost-type contracts will require consent if the contract price is over a certain dollar value.

Construction government contracts in excess of $2,00.00 is covered under the Davis-Bacon Act, which requires the contractor to pay employees the prevailing wage in that region for work done. As a general rule, government contracts in excess of $500,000.00 ($1,000,000.00 for construction) require the prime contractor to submit a subcontracting plan allowing reasonable consideration for offers to small businesses.

Subcontracting Clauses

Prime contracts generally contain clauses that will be included in the subcontract. The Federal Acquisition Regulation (FAR) has approximately 36 or more contract requirements that “flow down” to subcontractors. It is critical that contractors ( prime or subcontractors) have attorneys that can explain, negotiate or comply with these sweeping clauses.

Subcontractor Claims

There is a general consensus that there is no privity of contract between the government and a subcontractor (See Merritt v. U.S., 267 U.S. 338.) The fact that the government may approve a subcontractor does not substitute the privity of contract analysis.  In other words, subcontractors cannot sue the government directly absent an express or implied contract between the government and the subcontractor ; as well  as the prime contractor. A typical situation could be when the government instructs the subcontractor on the project to do something (change) and assures the subcontractor that the contract will be modified.

To be more exact, the United States Supreme Court  has held that a subcontractor who was not paid by the prime on a federal project cannot sue the government directly by asserting an equitable lien of funds held by the government. (See 525 U.S. 255).

Regarding claims against a prime contractor for nonpayment or breach of contract, the terms of the subcontract generally control and should be litigated in the appropriate state or federal court (Federal Miller Act Claims are generally brought a federal district court where the project is performed).

Having a strong subcontract to protect your legal interests is paramount to both and prime subcontractors in federal contracts. If you are involved in this process, you must seek help from an experienced government contract law attorney.

For more information, contact us online or call 720.941.7200

Colorado Child Custody – Denver

Watson & Associates, LLC

When going through a divorce, parents tend to dispute child custody matters more often than not. It is very important to understand the Colorado child custody law focuses on the child’s best interest, and not the parents’ interest, to determine the outcome.

Family law can be a very trying time in a parent’s life. Child custody is but one of the many issues disputed in a Colorado divorce action. Given today’s economy , how can parents minimize expensive attorney fees associated with child custody and divorce litigation?

Focus on the child’s best interest and not your own agenda:  Colorado child custody law focuses on the best interest of the child standard.  Parents experiencing divorce should seriously attempt to resolve disputes in a mature manner. Sometimes negotiating a sensible parenting plan can be the difference in highly expensive litigation costs.

Looking at work schedules and what would be best suited for the child can start the analysis and can lead to other amicable resolutions in other matters in the divorce process. Your divorce attorney should keep you focused on the court’s mandate to consider certain things when deciding the issue of parenting time (formerly called “child custody”).

Custody litigation is not a forum to focus on parents: although the analysis for the outcome in a divorce action can be the other parent’s habits, relationship with the child and other facts, the real focus is the child’s future and ability to live a healthy life.

Colorado courts already understand that the adults are at odds with each other and dislike cases that involve only ‘mud slinging’ at the other parent. Skilled child custody lawyers understand that Colorado judges want sound information on what serves the child’s best interest (even though damaging facts come to light.)

Child custody and relocation: If you are a Colorado resident looking to move out of state, you should consult with your lawyer as to the facts of your case and ensure that the move will not substantially effect the non-custodial parent’s rights. In addition, you must also be able to show the long-term and shortterm  effects of your ability to support the child.

Although Colorado law generally presumes in favor of relocation, the right to move out of state is not absolute. As mentioned above, the cost-effective way to handle child custody relocation matters is to first discussion with the non-custodial parent; try to come to some amicable resolution and develop a workable parenting plan / schedule. Your attorney can then finalize the document and file apply it to the divorce proceeding. In the case of child custody modification that involves relocation, then the stipulated parenting plan can be filed with the court.

If you need assistance with Colorado child custody, divorce  and relocation matters, contact one of our Denver attorneys or call us at 720.941.7200.

Take Advantage of Federal Government Contract Opportunities in 2011

By Theodore Watson, Esq.

Theodore Watson & Associates, LLC

Given today’s economy, small businesses face an even tougher dilemma-how to increase revenues. There are several discussions concerning government contract efforts to provide more federal contract opportunities for smaller business entities. The reality is that there probably will not be too much change in the current efforts because the push would more than likely have to stem from congressional mandates. The executive agencies tend not to change too much given the many controversies and arguments made against the constitutionality of the existing programs.

For example, the existing SBA 8a program is currently being challenged as unconstitutional. A recent article referencing a federal court decision demonstrates such controversy. The best possible avenue for small businesses to take is to seek out potential teaming partners that have past performance with government contracts to seek opportunities in the current federal marketplace. The Air Force tends to be consistent in welcoming teaming efforts for new opportunities. However, there are still substantial trends that demonstrate a need for oversight.

Government contract opportunities are published on fbo.gov every day. However, when reviewing the trend, there is a decline in total small business set-asides, an increase in service-disabled projects, and more and more 8(a) competitive opportunities.

Will Small Business Contracting Goals Help You in 2011?

Although the Congress has set an overall contracting goal of 23%, it appears that agencies very seldom try to reach a higher mark when providing government contract opportunities to small businesses. There can be an argument that improvement in the economy can be accomplished by either increasing the goal amount or setting a temporary rule that forces the agencies to set aside more projects for any small business. This push could more than likely jump-start the economy and create more revenues for the Congress.

Given the separation of powers, the Congress might be hard-pressed to dictate to the Executive Branch directly. However, one avenue could be to set higher standards for the SBA to increase oversight on the procuring agencies. It is no secret that the Congress has more direct control over the SBA.

Suggestions to Increase Government Contracting Opportunities

Small businesses must aggressively seek ways of increasing the likelihood of success with government contract opportunities. This can be done by increasing training initiatives that involved more focused objectives for the specific industry or NAICS Code. An example would be to gather more solid data on the government’s spending habits by geography and set-aside practices. To further make the point, if the government, for example, showed a pattern of awarding proportionately more landscaping opportunities in HUBZone awards, and you were not a HUBZone, then the likely initiative would be to seek out a potential HUBZone teaming partner for future opportunities.

Another example would be a specific government contracting agency going to GSA for professional consulting services. The likely course of action would be to consider getting on a GSA schedule.

Currently, many small businesses simply rely on attending the many events put on by the government in hopes of landing an opportunity. Although these events can be fruitful at times, the reality is that contractors oftentimes leave the events with nothing but hope.

The economy will more than likely continue in its current state for at least another year or two. Small business federal government contracts have to do more to survive. There is no other way to put it.

8(a) Program

Many small businesses still consider applying for the 8(a) program in hopes of getting government contract opportunities by sole source. The truth is that your 8(a) certification takes quite a while, especially with the decrease in government manpower. Contractors must take a more realistic approach to survival.

Subcontracting Opportunities

Small businesses can also seek out government contract opportunities by monitoring awards to large businesses. The FAR clearly states that if the government awards a contract to a large business, and the amount is over $500,000, there must be a subcontracting plan to give opportunities to small businesses such as woman-owned, HUBZone, service-disabled veterans, and small disadvantaged businesses.

Small businesses should refocus and adopt new initiatives for 2009 government contracting opportunities. Consulting with government contract experts to develop an individual plan of action may be well worth the time and effort.

For more information on this topic, contact us or call 720.941.7200, 1866-601-5518.

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