Rose Consulting Law Firm

While it was not front page news this week, at least not on the networks, a major decision was handed down yesterday on whether President Trump could be barred from state ballots for President by state action.

Much more aptly put than I could, despite some pretty brilliant arguing at the Colorado District and State Supreme Court level, the bottom line of why they were in error is pretty simple.

The argument. The state was that Article 3 (the post Civil War Reconstruction Section of the 14th Amendment) was passed after the War in 1868 to prevent Confederates who previously held a Federal office (prior to the War) from again holding office. At the time it was ratified because even the Southern States did not want Senators and Representatives standing up in Congress yelling “The South is gonna rise again.”

However, whether or not a candidate is eligible to be placed on the ballot under Section 3, was ultimately determined to be the sole purview of Congress.

This makes sense if one thinks about the jurisprudential concerns. What would happen if individual states had the power to challenge candidates for President? Well, as an example let’s say 45 states wanted one person. 5 do not want to certify them in the ballot and in that case a weaker candidate would be proceeded by that party and the election (for the entire country) would be skewed. This would take the rights away from the 50 states to allow their citizens to vote for and elect whom they wish in the election at the instance of a state or two who found fault with a candidate. Do we really want to litigate a candidates eligibility in 50 different state proceedings. This would also preclude any average person from running as all their campaign funds would go to litigation.

I understand this is not what my more Liberal leaning friends wish to hear, but the Suoreme Court made the right decision. Just because the results did not meet the hopes and desires of a political party does not mean the reasoning of a unanimous court - yes there are 5 Republicans and 4 Democrats in the Court, so just like we were told in the last election - accept the results and Democracy is preserved.

Perhaps the bigger question one should ask is “why wasn’t such a monumental Constitutional Law decision discussed more thoroughly and publically on CNN and MSNBC?”

If you are not into law (pretty boring) you may not be familiar with “Chevron Deference” but briefly it’s a concept that arose from a case 40 or so years ago (Chevron vs NRDC) that set the standard that an agency charged with administering a certain kind of law (eg Small business for SBA, or Health Department for Health laws, etc) could make interpretations of a statute beyond what the Legislature specifically stated of that information was reasonable. I think after COVID we see where that has gotten us.

Anyway, 2 cases are before the Supreme Court to be heard in January that may alter this “deference” to agencies and it has my community reeling. Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce, two cases that directly challenge the legitimacy of the Chevron framework may give power back to citizens in how our government is run. Cross your fingers patriots. More to follow in the New Year.

We will be attending/exhibiting/speaking at the Society of American Military Engineers 🇺🇸 this week in Nashville Tennessee for their annual Small Business Conference among almost 4000 attendees. Please feel free to come by the booth to chat or to receive a brief free legal consultation about any small business government contracting issues that you may be having.

It’s not every day you get a lawyer for free so take advantage of this opportunity while we are “off the clock!”

DO YOU YOU HOLD A CONTRACT TO BUILD THE WALL TO PROTECT OUR SOUTHERN BORDERS

HAVE YOU RECEIVED A NOTICE TO STOP WORK UNDER FAR 52.242-15?

The new Administration appears to be altering contracts entered into by contractors and the initial manner of addressing its new approach is to issue 90-day stop work orders under the authority of the Federal Acquisition Regulation found at FAR 52.242-15.
If your company has been the victim or target of a stop work order, you need to begin taking steps immediately. Some are required by regulation; others are simply prudent. In this article, we will attempt to provide some suggestions on how to manage this sucker punch to your gut, and hopefully, survive this economic loss.
Upon receipt, you are required to take the following steps: stop all work on the affected contract and reduce or preferably eliminate incurring costs to the contract the maximum extent possible. As a caveat to all this – document everything you do!
If you have subcontractors working for you on this effort, notify them and share this information to assist them in minimizing their costs.
In many instances there will be costs created by the stop work order, and costs that will not be able to be completely curtailed. Be sure to document and write up justifications for each of these. Examples might be unexpired leases where the cost to cancel the lease outweighs keeping it in place. You have a duty to preserve the assets at the worksite so you will need to discuss with the Contracting Officer what they wish you to do in that regard. Is it cheaper to rent a portable storage building or keep a worker on site to watch over the site? Do you need to secure partial structures, finish a roof to prevent further degradation of in-place partial construction, etc.? Again, some of these should be placed in RFIs in writing to the contracting officer for clarification and documentation. If you ask for guidance on an issue like these, and there is a danger of damage to the project, if you are acting in good faith, perhaps send an email to the contracting officer, copying the COR and PM and say if you do not receive a response you will move forward with taking the minimum steps to preserve the government’s asset which includes …. and describe the steps you are taking.
Assuming, as it what is currently occurring with the border wall, the stop work orders are for the maximum – (90 days) – prior to the expiration or upon the expiration of the 90 days, the government has to lift the stop work order, extend it or terminate the contract. If they do nothing, on day 90, it automatically lifts. Rather than take chances; however, communicate with the contracting officer.
Another important point – when the stop work order either is terminated, or work is restarted, you only have 30 days to submit a Request for Equitable Adjustment to the contract performance schedule and submission of any costs incurred as a result of the stop work order to the contracting officer. Do not miss this deadline.
The following is a list that is not all inclusive of costs that may be incurred to consider throughout the stop work and remobilization period:
Management Costs
Severance costs as well as any increased unemployment taxation costs incurred during the stop work period
Idle time and facilities (ask the contracting officer if they will allow time for remobilization – in writing – or if they expect you to be ready as soon as the order is lifted)
Additional or alternate personnel required
Unabsorbed Overhead – this claim is actually recognized by DCAA as a claim for unabsorbed overhead to recoup overhead costs that had to be reallocated against other work because this project was no longer available to absorb them as part of the indirect labor and overhead stream
Cost of bonding that was frozen during the period (arguable lost opportunity)
Remember the costs of preparing the REA are included in the REA (attorney fees)
Cost of facilities sitting idle
Recruitment fees if personnel are lost and need to be rehired
Remobilization costs
If inflation occurs account for that cost at start up
Profit on any additional costs
Any claimed additional subcontractor costs
Other consultant costs such as accountants and business advisers