Disadvantaged Business Enterprise Law Update

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    23-Aug-2014
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PowerPoint Presentation on Disadvantaged Business Enterprise Law with emphasis on Bid Phase of Public Contracting

Transcript of Disadvantaged Business Enterprise Law Update

  • 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
  • 2014 Kraftson Caudle. All rights reserved. Preview Commercially Useful Function Responsible vs. Responsive in Bid Evaluations DBE False Claims Act Violations
  • 2014 Kraftson Caudle. All rights reserved. Commercially Useful Function
  • 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).
  • 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 DBEs. So, cannot count that DBEs percentage. Upon rebid, DBEs work was furnishing and installing only.
  • 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.
  • 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.
  • 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 subs 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).
  • 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
  • 2014 Kraftson Caudle. All rights reserved. Actual DBE FCA Violations Manafort Brothers, Inc. ($2.4M) Structural Steel Retaining Walls
  • 2014 Kraftson Caudle. All rights reserved. Actual DBE FCA Violations Schuylkill Products, Inc. ($119M + 2 years prison for executives)
  • 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