March 25, 2019

Archives for July 2016

Tenth Circuit: Unpublished Opinions, 7/22/2016

On Friday, July 22, 2016, the Tenth Circuit Court of Appeals issued one published opinion and three unpublished opinions.

Gabriel v. Wal-Mart Stores, Inc.

United States v. Bonilla

United States v. Lopez-Jacobo

Case summaries are not provided for unpublished opinions. However, some published opinions are summarized and provided by Legal Connection.

Commercial/Preference Owned Business in the Commercial Marketplace

Editor’s Note: This article is reprinted with permission courtesy of Richard F. Busch, II,  www.rbuschlaw.com. All rights reserved.

By Richard F. Busch, II, Esq.

Why should an otherwise commercial company consider entering the Government market place as a prime contractor, vendor, or subcontractor at any level, especially if you can qualify for a preferred status (Veterans, SDVOSB, or Women Owned Small Business? 

Due to the growth in technology, the Government has determined that the commercial business sector must be the primary force to develop and provide the products and services they need to achieve society’s goals. Consequently, the Federal Acquisition Regulation (“FAR”) and the individual agency supplements have been revised to become much more “commercial” friendly in most situations. If the potential contractor is a “commercial” business engaged in supplying commercial products or services, many of the complex requirements simply do not apply. Except for a very limited number of government unique provisions, most clauses are negotiable. In addition, there are award goals set by Federal statute that define prime contracting goals for small businesses, veteran owned small businesses, women-owned small business, Service Disable Veteran Owned Small Businesses, and more.

The following are some general points a commercial/preference business should consider:

  • Just over $573B DoD 2016 proposed spending plan and an additional $163 B for Veterans Affairs programs (total government budgets much bigger)
  • Limited government audit rights for commercial companies with commercial products
  • Terms and conditions more conducive to commercial application (subject to the unique mission of the government)
  • Over 11 Million commercial supplies (products) and services at volume discounts offered on GSA Schedule contracts
  • Favorable research and development terms if negotiated correctly
  • Commercial pricing based on the market—(Government does request the best commercial prices under like terms and conditions)
  • Electronic Payment with automatic interest on due and payable amounts for late payments
  • Joint venture, teaming arrangements, and subcontract opportunities in addition to prime status purchases

The government market sector has vast potential for a company that has the resources and products/services to benefit the goals of the government. If a company is considering doing business with the government, the effort must be based on one simple principle—DO IT RIGHT!

© Busch Law Firm LLC (2016)

Richard Busch, II, is a solo practitioner at The Busch Law Firm, which is a boutique government contract practice firm. His practice involves all aspects of government contracts, commercial contracts, conflict management systems design, ADR, and white collar crime. More specifically, his practice focuses on the formation and administration of contract relationships through the utilization of a proactive approach of addressing the objectives of the relationship, requirements for successful performance, and the resolution of disputes. Mr. Busch has extensive experience in negotiating complex business issues involving high technology and major weapons system contracts, contract compliance issues, and resolving both internal and external disputes involving the business organization. Richard has reviewed and negotiated multimillion dollar solicitations, proposals, equitable adjustments, terminations, and other related government acquisition and commercial-based contract matters with a number of government agencies and subcontractor/vendors. He concentrates on the legal issues facing a corporation doing business with the government or its prime contractors in the areas of construction, high technology, major weapons systems, and information⁄communication technology. Mr. Busch has worked with corporations, the DoD, and other government agencies in the highly structured areas of classified contracts. As a result, he has gained a wealth of experience in dealing with classified authorities pertaining to these agencies. Prior to entering private practice, Mr. Busch held positions as General Counsel of a multi-billion dollar product area with a Fortune 50 defense contractor and a legal advisor to the Director of Contracts at the National Security Agency (NSA).  Mr. Busch earned an L.L.M. (Government Contract Designation) from George Washington University National Law Center, a J.D. from the Hamline University School of Law, and a B.A. from Westminster College, Fulton, Missouri.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

 

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CLE Program: Finding Federal Contract Work — Meet the Attorneys, Veterans, the SBA and Bankers Your Clients Need

This CLE presentation will occur on September 16, 2016, at the CBA-CLE offices (1900 Grant Street, Third Floor), from 9 a.m. to 4:10 p.m. Register for the live program here or register for the webcast here. You may also call (303) 860-0608 to register.

Can’t make the live program? Order the homestudy here: CD • MP3Video OnDemand.

Colorado Court of Appeals: Announcement Sheet, 7/21/2016

On Thursday, July 21, 2016, the Colorado Court of Appeals issued no published opinion and 38 unpublished opinions.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.

Tenth Circuit: Unpublished Opinions, 7/21/2016

On Thursday, July 21, 2016, the Tenth Circuit Court of Appeals issued no published opinion and eight unpublished opinions.

United States v. Moreno

Church Mutual Insurance Co. v. Ma’afu

Callahan v. Communications Graphics, Inc.

Whittington v. Maes

United States v. Beadles

United States v. Washington

United States v. Perez

Scribner v. Works & Lentz, Inc.

Case summaries are not provided for unpublished opinions. However, some published opinions are summarized and provided by Legal Connection.

Hon. Daniel B. Petre to Retire from Ninth Judicial District Court

Petre (Formatted)On Wednesday, July 20, 2016, the Colorado State Judicial Branch announced the retirement of Hon. Daniel Petre from the Ninth Judicial District Court, effective October 1, 2016. Judge Petre was appointed to the bench in 2002. Prior to his appointment, he was a District Court Magistrate in the Ninth Judicial District and a Division 5 Water Referee. He was in private practice for 24 years before working as a magistrate and water referee. He received his undergraduate degree from Dartmouth College and his law degree from Southern Methodist University Law School.

Applications are now being accepted for the upcoming vacancy. Eligible applicants must be qualified electors of the Ninth Judicial District and must have been admitted to practice law in Colorado for five years. Application forms are available from the State Judicial website or from the ex officio chair of the Ninth Judicial District Nominating Commission, Justice Allison Eid. Applications must be received no later than 4 p.m. on August 31, 2016; anyone wishing to nominate another must do so no later than August 24, 2016.

For more information about the vacancy, click here.

Colorado Court of Appeals: Notice-Prejudice Rule Applies Where Claim Filed with Insurance Company After Contractual Period

The Colorado Court of Appeals issued its opinion in MarkWest Energy Partners, L.P. v. Zurich American Insurance Co. on Thursday, July 14, 2016.

Insurance—Notice-Prejudice Rule—Occurrence Liability Policy.

MarkWest Energy Partners, L.P. (MarkWest), a natural gas company, procured from Zurich American Insurance Company (Zurich) a commercial general liability policy (the policy) with a limited pollution liability endorsement (the endorsement), covering “incidents” occurring between November 1, 2012, and November 1, 2013. On November 4, 2012, MarkWest was constructing a pipeline when a chemical used in the drilling process escaped the drilling area, thereby contaminating the surrounding area. MarkWest immediately reported the incident to local environmental officials, who approved a chemical cleanup protocol and confirmed that cleanup had been successfully completed in February 2013. On March 28, 2013, MarkWest notified Zurich of the contamination and filed an associated claim. Zurich denied the claim because MarkWest had failed to provide notice within 60 days of the incident, as required by the endorsement. MarkWest filed an action for damages, and the district court granted Zurich’s motion for summary judgment.

On appeal, MarkWest contended that the notice-prejudice rule applied and the district court erred in granting Zurich’s motion for summary judgment. Colorado’s notice-prejudice rule applies even where, as here, the notice requirement is a condition precedent to coverage under an occurrence liability policy. Therefore, unless Zurich can show that its ability to investigate the occurrence or defend against a claim was prejudiced by MarkWest’s late notice, the court cannot deny a claim based solely on a failure to strictly comply with the notice provision. Because the district court concluded otherwise, its decision was reversed and the case was remanded for further proceedings.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Tender of Funds in Satisfaction of Lien Before Redemption Period Must Be Accepted by Creditor

The Colorado Court of Appeals issued its opinion in Mortgage Investment Enterprises, LLC v. Oakwood Holdings, LLC on Thursday, July 14, 2016.

Foreclosure—Lien—Redemption.

The debtors purchased the property at issue and subsequently defaulted on their obligation to pay monthly fees to the Kimblewyck Village Owners Association (Kimblewyck). Kimblewyck filed a lien against the property. The property was also encumbered by (1) a lien filed by the Fox Run Owners Association and (2) two judgments entered in favor of Community Management Association, Inc. (CMA). Kimblewyck obtained a judgment and decree of foreclosure. Mortgage Investments Enterprises LLC (Mortgage Investments) was the successful bidder at the foreclosure sale. On the day before the foreclosure sale, Oakwood Holdings, LLC (Oakwood) purchased the Fox Run lien and both CMA judgments. Oakwood subsequently filed notices of intent to redeem the Fox Run lien and one of the CMA judgments. Mortgage Investments tendered, on behalf of the debtor, pursuant to a valid power of attorney, lien satisfaction payments to Oakwood. Although Oakwood’s period to redeem had not yet begun, it refused to accept the payments. Mortgage Investments filed a complaint for a declaratory judgment that Oakwood was required to accept Mortgage Investments’ tenders on behalf of the debtor. Oakwood subsequently redeemed the property, and the district court granted Oakwood’s motion for summary judgment.

On appeal, Mortgage Investments argued that the district court erred in concluding that Oakwood had no duty to accept tender of payment in satisfaction of its liens. Prior to the start of Oakwood’s period to redeem and before it tendered redemption funds, Oakwood had a duty to accept Mortgage Investments’ tender of payment, on behalf of the debtor, in satisfaction of the lien Oakwood sought to redeem. The district court’s judgment was reversed and the case was remanded with directions to enter summary judgment in favor of Mortgage Investments.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Proof of Alleged Abuse Not Required Where Child Adjudicated Dependent Based on Lack of Parental Care

The Colorado Court of Appeals issued its opinion in People in Interest of L.K. on Thursday, July 14, 2016.

Dependency and Neglect—Sexual Abuse—Polygraph Examination—Treatment Plan—Testimony—Evidence—Attorney Fees—Discovery Violations—Sovereign Immunity.

L.K. alleged sexual abuse by her father, C.K. Although C.K. denied the allegations, he stipulated that L.K. was dependent and neglected because she lacked proper parental care. The court accepted his admission and adjudicated L.K. dependent and neglected. The Moffat County Department of Social Services (MCDSS) devised a treatment plan for C.K., which required, among other things, that C.K. take a polygraph examination as part of denier’s treatment. Moffat later moved to terminate C.K.’s parental rights. Among other things, the court found that C.K. had been referred for a polygraph examination but did not appear for it, and it granted the termination motion, citing C.K.’s failure to successfully complete treatment designed to address the allegations of sexual misbehavior with L.K. as sufficient evidence that he was unable or unwilling to provide nurturing and safe parenting to adequately address her needs.

On appeal, C.K. contended that the trial court committed reversible error by considering the denier’s treatment polygraph examination as evidence supporting its determination that he failed to successfully complete his treatment plan. He did not dispute either that his treatment plan required him to participate in denier’s treatment or that a polygraph examination was required in denier’s treatment. For these reasons, the court properly admitted evidence of efforts to schedule an appointment for a polygraph examination and evidence that C.K. did not keep the appointment, and the court did not err in considering this evidence in terminating C.K.’s parental rights.

Next, C.K. contended that MCDSS had the burden to prove by clear and convincing evidence that his parental rights should be terminated, but the trial court erred by unfairly shifting the burden of proof to him when he decided not to testify in the termination hearing. When C.K. failed to present evidence, the court did not improperly shift the burden of proof, infringe on his privilege against self-incrimination, or draw impermissible adverse inferences.

Finally, C.K. contended that MCDSS did not prove its case by clear and convincing evidence, asserting the absence of such evidence that he had sexually abused L.K., which was the basis for the petition in dependency and neglect. However, the factual basis for adjudicating L.K. dependent and neglected had already been established, and MCDSS’s burden was to prove the criteria for termination, including C.K.’s failure to comply with his treatment plan. The Court of Appeals rejected the contention that the evidence was insufficient to support the judgment.

On cross-appeal, MCDSS contended that the trial court erred in assessing attorney fees against it for discovery violations. Sovereign immunity precludes orders assessing attorney fees against a governmental entity for discovery violations.

The judgment was affirmed and the sanctions order was reversed.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 7/20/2016

On Wednesday, July 20, 2016, the Tenth Circuit Court of Appeals issued no published opinion and seven unpublished opinions.

Antonio v. Lynch

Feldt v. Heritage Homes of Nebraska, Inc.

United States v. Rogers

United States v. Lewis

United States v. Amador-Beltran

Ray v. Colvin

Williams v. McKee

Case summaries are not provided for unpublished opinions. However, some published opinions are summarized and provided by Legal Connection.

Colorado Court of Appeals: Proposed Development Plan Need Not Include Outdoor Gathering Space

The Colorado Court of Appeals issued its opinion in Rangeview, LLC v. City of Aurora on Thursday, July 14, 2016.

Rezoning of Property—Site Plan—Standards—Abuse of Discretion.

BFR’s application to rezone its parcel of property (the property) was granted. Rangeview LLC owns Rangeview Estates, which borders the property to the west, and Eades and Sellery each own property in the neighborhoods surrounding the property. Rangeview, Eades, and Sellery (collectively, Rangeview) filed the underlying action against the City of Aurora, claiming that the Aurora City Council exceeded its jurisdiction in granting BFR’s application to rezone the property. The district court affirmed the City Council’s decision.

On appeal, Rangeview argued that City Council abused its discretion by approving the site plan because the plan did not include an outdoor gathering space as mandated by the Aurora Municipal Code’s (Code) sustainable infill redevelopment (SIR) zoning district design standards. The Code defaults to the terms of the SIR handbook, which states that projects “should” provide a public space. Therefore, although a public space is desirable, it is not required. Because City Council’s approval was supported by competent evidence, it did not abuse its discretion.

Rangeview also argued that City Council abused its discretion in rezoning the property to an SIR district when the property does not meet the requirements of an “infill development parcel,” the proportions of which are defined in the Code. Because the Code language’s ordinary meaning does not reference any requirement related to the proportions of developed boundaries, the City Council did not abuse its discretion by approving the rezoning request even though the property would not meet the definition of an “infill development parcel.”

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Proof of Mailing of License Revocation Notice Insufficient to Prove Knowledge in Criminal Proceeding

The Colorado Court of Appeals issued its opinion in People v. Boulden on Thursday, July 14, 2016.

Knowledge Element ofDriving Under Restraint.

Defendant’s driver’s license had been suspended for seven months when he was pulled over. He was convicted of driving under restraint.

On appeal, defendant contended that there was insufficient evidence to support his conviction. Knowledge is an essential element of the crime of driving under restraint. The prosecution admitted into evidence a certified copy of defendant’s driving history, which showed that notice of defendant’s driver’s license suspension had been mailed to him. Mere proof of mailing, however, is not sufficient in a criminal case to prove beyond a reasonable doubt a defendant’s knowledge of restraint of his driver’s privilege. Accordingly, no reasonable jury could have found that the prosecution proved the knowledge element of driving under restraint. Defendant’s conviction and sentence for driving under restraint were vacated, and the trial court was directed on remand to enter a judgment of acquittal.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 7/19/2016

On Tuesday, July 19, 2016, the Tenth Circuit Court of Appeals issued five published opinions and six unpublished opinions.

Gosselin v. Kaufman

Jones v. Midland Funding

Hollis v. Aerotek, Inc.

United States v. Dishmon

Sanchez v. Crocs, Inc.

Glenn v. McCollum

Case summaries are not provided for unpublished opinions. However, some published opinions are summarized and provided by Legal Connection.