MAIN - Combined Set Exam 1 Law 465

Who is the worlds largest consumer of goods?

Federal Government

Who creates the Davis Bacon Act?

FBO

What percentage of federal work was won by top 200 Companies?

62%

Who are disputes resolved through on a federal construction Project?

Government Accountability Office or U.S. Court of Federal Claims

What are the four strategies to win federal Contracts?

•Register in the Central Contractor Registration Database (CCR) (Now SAM)

•Complete an Online Representations and Certifications Application (ORCA)

•Know the programs administered by the Small Business Association (SBA)

•Pay close attention to the terms and conditions in the government's solicitation

What factors of a company are government contract awarded on?

•Performance

•Experience

•Management

•personnel

What is HUB?

Historically Underutilized Businesses

What is the SDV?

The Service Disabled Veteran

What is the WOSB?

The Women-Owned Small Business

What is the SDB?

Small Disadvantaged Business

What set eligibility and determines if a businesses qualifies for Small Business Programs?

Small Business admin

What is the Buy American Act (1933)?

•Requires Gov't agencies to purchase goods domestically for their own use or for use in construction

What are some exceptions to the Buy American Act?

•Unreasonable cost

•Against public policy

•Not enough quantity/quality

•Award price of contract less than threshold purchase amount

•Product/materials not for public use

What is the Davis Bacon Act of 1931?

Government program that establishes labor wadges

At what contract value must an employer pay overtime and how much overtime do they pay?

100K, 1.5 times

What is the purpose of the contract dispute act?

To resolve annuities in federal contract and govern how claims are submitted for dispute resolution. Governs post-award monetary and non-monetary claims.

Used with contracts that have already been awarded.

Can the contract dispute act be used for tort and davis bacon claims?

NO

What is the statue of limitation for contract dispute claims on a federal contract?

6 year

How much time does a CO have to issue a decision on a claim less than 100K?

60 days

With in what duration can a CDA be appealed, and to who must the appeal be sent?

90 Days, BCA (Building Construction authority)

What is Aristotelian Syllogisms?

Gracefully guiding the reader to a certain conclusion

What party has apparent authority to issue contract changes?

Contracting officer

What is a ostensible subcontractor rule?

Sub contractors can be affiliated with larger businesses if they preforms primary work

What is the SBA?

Small business administration

What is an example of a environmental government Program?

Leadership in Energy and Environmental Design (LEED)

What are consequences for contractor behavioral and performance issues?

•Contract cancellation

•Fines

•Damages

•Forfeiture of claims

•Suspension

•Debarment

•Criminal sanctions

What are common certifications required by contractors doing federal works?

•Initial solicitation

•Monthly progress payment applications

•Davis-Bacon payroll data

•Resolution of claims

What is whistle blowing?

informing the press or government officials about unethical practices within one's organization

What is FAR?

Federal Acquisition Regulation

what are FAR's Expectations on ethics?

•Must conduct self with highest degree of integrity and honesty

•Should have a written code of business ethics and conduct

•Should have an employee business ethics and training program suitable for the size of the company that will facilitate discovery and disclosure of improper conduct and ensure corrective measures are carried out.

•If contractor knows gov't has overpaid them then must remit the overpayment back

What is common law?

law made by judges through their decisions, not through specific statutes

What is statutory law?

A formal law passed by the legislature.

What is a sole proprietorship?

business owned and operated by one person. Unlimited, personal liability.

Used for developments and investments

• No liability shield: Business debts and judgments reach the owner's personal assets.

• Capped growth: Financial growth is limited to the work and credit the owner can personally obtain.

• Bottom Line: You and the business are the same legal person.

What is a limited partnership?

Limited partnerships allow people to invest in a business without exposing themselves to certain liabilities.

Limited partners invest & are protected. Can't go after limited partners' personal funds. Law firms are set up this way.

What is a joint venture?

A partnership built for one project rather than an ongoing business

Joint ventures are agreements to mutually control, share profits, split losses and expenses with its members.

What is a corporation?

Corporations are legal entities distinct and separate from its shareholders

 Owners are generally not personally liable for the corporation's obligations.

What are LLC's?

•A limited liability company is made up of multiple business forms. A hybrid that borrows from both the corporation and the partnership

•Limited liability companies share some of the benefits common to corporations and general partnerships.

What are Disadvantage Business Enterprise?

is a business whose ownership and management consists of at least 51% socially and economically disadvantaged people.

What is a Minority Business Enterprise?

managed, and controlled by at least 51% of minority individuals

What does it mean to Pierce the Corporate Veil?

To hold the corporate employees liable for debts

What is the Alter ego Liability?

When a smaller company is related to the larger, for example, a parent company and its subsidiary companies. In these cases, a successful plaintiff will show the true wrongdoer was the parent company.

what are the consequences for a company not paying its taxes?

Losing the ability to preform work in texas

What is a not disclosure agreement?

Limits and employee to disclose any information regarding an organization

What is a non compete agreement?

an employee will not attempt to take an organizations business

What is non solicitation Agreement?

prohibiting an employee form using company contact for personal monetary gains upon leaving the company

What must a foreign business obtain before doing work in Texas?

Certification of Authority

Does Texas require contractor to be Licensed?

No

Do engineers have to be licensed?

Yes

Do Architects have to Be licensed in texas?

Yes

What tradesman are required to be licensed in Texas?

Plumbers & Electricians

Refrigeration contractors, Abatement contractors, hoisting , Fire protection

What is the TRCC?

Texas Residential Construction Commission

No-Damage For Delay

An Extension of time for delays but no monetary correction

Consequential Damages

Special damages that compensate for a loss that is not direct or immediate (for example, lost profits). The special damages must have been reasonably foreseeable at the time the breach or injury occurred in order for the plaintiff to collect them.

Flown Down Provision

When a Sub assumes the risk that the contractor has taken from the owner pertaining to that contractors scope of work

Difference between "Paid-if-Paid" and "Paid-when-Paid"

paid-when-paid - means to pay a sub when the owner pays the GC

Paid-If-paid - Only in texas, means to pay when the owner pays you, but if you know the owner is not going to pay you, you have to pay the subs

How does a company manage a risky project?

By increasing the price

What is chapter 7 bankruptcy?

liquidation: give up nonexempt assets and walk away from most debts. A chapter 7 trustee is appointed, distributes assets among creditors.

What is chapter 9 bankruptcy?

Give municipalities some breathing room to recognize and return to profitability.

What is Chapter 11 Bankruptcy?

Give debtor some breathing room to recognize and return to profitability. You will rarely see individuals in this form as it is incredibly expensive

What is chapter 13 bankruptcy?

For those who need to restructure debt load. This chapter has debt limits If you have exceeded the debt limits that's when an individual looks into filling a chapter 11.

What is chapter 2 bankruptcy?

For family farmers and fisherman to reorganize (like 13).

What is automatic stay?

When bankruptcy proceedings commence, a creditor may not pursue remedies against the debtor or his assets. Goes into effect the moment a bankruptcy petition is filed

Components of automatic stay

No court order is necessary

Nothing contrary to debtor/ his property

All actions against debtor by its creditors are automatically stopped

No new lawsuits; cannot pursue an existing lawsuit; cannot demand arbitration

Cannot enforce a judgement against the debtor

Provision in the code that you cannot exert control or continue to exert control on the property of the debtor/ estate

Cannot sell materials, tools, equipment or supplies

Cannot file or foreclose a lien against the property nor against any of the debtor's other property

What is a executory contract?

It is a contract in which if a debtor is to file for bankruptcy he is not relived of contractual duties to another party.

• you cannot stop work

• in ch.7 contract is rejected if not assumed within 60 days, ch.11 can wait until confirmation

• assumption has a price, the debtor must cure defaults and compensate losses

• may assign an assumed contract

Contract

Law dealing with a set of promises made by one party to another, the breach or upholding of that particular set of promises

Breach of Contract

When one party fails to execute what they agreed upon, without justification or reason

Breach of Contract

In a situation where a contractor fails to use the specified trim paint color, or its failure to complete the work on time, what has taken place?

Express obligations

Obligations that are spelled out in the agreement or contract

Implied obligations

Obligations that are less obvious, but just as important, including good faith and cooperation

Cooperation

What is a common example of an implied obligation within a construction contract?

implied obligation, cooperation

When an owner does not allow the contractor access to the site in order to perform its work, a hinderance of duties is present as a result of violating a(n) ___________, specifically __________

f

T/F

The fact that the common law of contracts is grounded in legal precedent helps provide certainty in commercial transactions and may suggest that construction law does not evolve.

Tort

A civil wrong, for which the court will provide a remedy in the form of an action for damages

A civil action commenced and maintained by the injured party itself

negligent, intentional, strict liability

What are the three categories of torts?

Intentional Tort

A tort where the wrongdoer either expressly or by implication intended the act that resulted the injury

Conversion

Intentional tort where the interference with the property of another to the extent that the wrongdoer deprives the owner of possession

Breach of contract

What does not fall under the penumbra of a tort

Negligence

Lack of due diligence or care

negligence

Considering that a design professional owes a duty of competence to everyone, what violation will a design professional be charged with if unqualified to design?

Strict Liability

Liability without regard to fault

A voluntary party involved with this clause will be responsible for any liability, regardless of who the fault belongs to

Demolition

What is a good example of a strict liability activity?

Regulatory Law

Also referred to as statutory laws, enacted by governing bodies with the authority to create laws

I.e. licensing and building codes

Criminal Law

Dealing with actions that affect the general public

Regulatory

What kinds of laws are licensing and building codes?

Statutory, Contract, Tort

What are the 3 main categories of law that apply within the construction industry?

Contract

The foundation of virtually every relationship in the construction industry

Whistleblower

a person who informs on a person or organization engaged in an illicit activity

Respondeat Superior

holds an employer or principal legally responsible for the wrongful acts of an employee

Privity of Contract

only parties to contracts should be able to sue to enforce their rights or claim damages as such.

Contract interpretation

The process of determining what the parties' agreed to in their contract

Contract interpretation

Involves deciding the meanings of words, filling in gaps, and resolving conflicts within a contract

5

How many conditions must a contract follow in order to be enforceable by law?

No

Is a contract enforceable by law if not meeting all 5 conditions?

5 conditions

There must be a real agreement between the parties' or a true "meeting of the minds" on the subject matter

The subject matter must be lawful

There must be valid consideration for each promise

The parties must have the legal capacity to contract

There must be compliance with legal requirements regarding the form of the contract (some contracts must be in writing)

Lawful

Contract conditions:

The subject matter of a contract must be _____ to be enforceable by law

Valid consideration

Contract conditions:

There must be ___________ for each promise

Condition Precedent

an event or state of affairs that is required before something else will occur

Flow Down Clause

a contract provision by which the parties incorporate the terms of the general contract between the owner and the general contractor into the lower tier agreement

legal capacity

Contract conditions:

The parties must have the _________ to contract

control of normal mental faculties, of age

What are some examples illustrating the legal capacity to contract?