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The Brooks Act and Public Procurement: What to Know

Government agencies and authorities going out to bid for architectural and engineering (“A/E”) contracts involving federal funds are required to follow the qualifications-based selection process outlined in the Brooks Act.

The Brooks Act, passed in 1972, establishes the processes by which architects and engineers are selected for federal design and construction projects. The Act outlines a qualifications-based selection process, emphasizing competence and expertise and excluding price as an evaluation factor.

This means that A/E firms bidding on a contract must follow a two-step selection process: demonstration, then negotiation.

First, the firm must demonstrate that it is the most qualified to complete the project. Negotiations are conducted with the most qualified firm only: and if an agreement cannot be reached as to a fair and reasonable price, negotiations are terminated and the selection committee moves to the next-most-qualified candidate.

The types of services that must be procured according to the Brooks Act are defined in 49 U.S.C. Section 5325(b) as “program managemet, construction management, feasibility studies, preliminary engineering, design, architectural, engineering, surveying, mapping and related services.”

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Massachusetts has significantly reformed the laws governing non-compete agreements, including coverage, scope, and enforceability in the state. The bill, signed in August, also included a provision for adoption of the UTSA (Uniform Trade Secrets Act.)

The new regulation applies to non-compete agreements for employees and for independent contractors entered into on or after October 1, 2018 and is not retroactive. It does not apply to other restrictive covenants (for example, non-solicitation agreements); nor does it apply to non-compete agreements in relation to separation of employment, provided the employee has 7 days to rescind.

The law applies to all non-competes entered into with Massachusetts residents, employees and independent contractors. An employer whose primary place of business is outside Massachusetts is still bound by the Massachusetts non-compete regulations, and cannot choose to apply another state’s regulations to avoid compliance.

The new law places restrictions on employees that may be subject to non-compete agreements. Employers are prohibited from entering into non-compete agreements with employees who are designated as non-exempt under the FLSA, who are under 18, interns and other short-term employees, and employees who are terminated without cause or subject to a reduction in force or layoff.

Because of inclusion of the phrase ‘without cause’, it is recommended that a definition of ‘cause’ be provided in all non-compete agreements issued after October 1.

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In the wake of #MeToo, employer responses to workplace misbehavior are being scrutinized more closely than ever. How do you ensure that your company’s response to a complaint will be effective in a changing business environment?

Sexual harassment and other forms of sexual misconduct have been front and center in the media for months now. Reports of film mogul Harvey Weinstein’s conduct, followed by reports of similar behavior from other famous and powerful men in entertainment, politics, sports and business, have sparked a new awareness and intolerance for conduct that crosses the line.

Meanwhile, the #MeToo movement has empowered victims to come forward and report misbehavior.

At its Annual Meeting on March 15, 2016, the members of the Belmont Tennis Club (BTC), one of the oldest tennis clubs in America, honored its venerable Groundskeeper – Charles T. “Chuck” Jennings. BTC President Alison Borelli’s remarks follow:

“Chuck, you are the Groundskeeper in name only – yes, you keep the Club in pristine shape, but you give so much more of yourself and your time. This is not part of your job description, nor are you compensated for it.  I wouldn’t be surprised if most members didn’t realize that you are not required to be there whenever the sun is shining! You could show up in the morning, ready the courts, and leave if you wished.

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But, you love this place, and you devote much of your time here. You take care of so many small issues that arise that, left unattended, would fester and become much more difficult to address.

Company can’t interview only ‘inexperienced’ job applicants

A medical device company in Illinois posted an ad for a job in its law department, restricting consideration of applicants to those with no more than seven years of legal experience.

The company received an application from 59-year-old Dale Kleber, who had previously served as general counsel of a public company, head of a national trade organization, and interim CEO of a different medical device business.  The company didn’t interview Kleber and instead filled the position with a 29-year-old.

In an abundance of good faith, from us (collectively, the “Wishor”) to you (hereinafter referred to as the “Wishee”), please accept without obligation, implied or implicit, our best wishes for an environmentally conscious, socially responsible, politically correct, low stress, non-addictive, gender neutral, celebration of the winter solstice holiday, practiced within the most enjoyable  traditions of the religious persuasion of your choice, or secular practices of your choice, with respect for the religious/secular persuasions and/or traditions of others, or their choice not to practice religious or secular traditions at all . . . and a financially successful, personally fulfilling and medically uncomplicated recognition of the onset of the generally accepted calendar year 2014, but with due respect for the calendars of choice of other cultures or sects, and having regard to the race, creed, color, age, physical ability, religious faith, choice of computer platform or dietary preference of the Wishee (cumulatively, the “Seasonal Greeting” or “Greeting”).

By accepting this Greeting you hereby agree to be bound by these terms; THAT:

* This Greeting is subject to further clarification or revisions including, but not limited to, revocation; and

Founding a small business is a venture packed with excitement. It’s a test of your savvy and personal strength. Many also find it to be a source of immense pride and a satisfying accomplishment.
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2014 is a perfect year to make it happen, especially as the Wall Street Journal reported that many small business owners anticipate a breakout year in which they can put the worst of the recession firmly behind them. A survey of nearly 1,000 small business owners nationwide revealed more than half said the economy had improved last year (up from 36 percent a year earlier) and nearly 40 percent said they expect market conditions to be even better this year (up from 27 percent last year). Three-fourths of all business owners polled said they expect better sales this year than last, and their confidence index is the highest it’s been in 18 months.

Of course, entrepreneurs tend to be optimistic by nature, and none embark on the quest of starting a small business in Boston with the assumption it’s going to tank. Of course, there are never guarantees. But careful legal planning may significantly bolster your chances of success. At the very least, failure to consider relevant legal strategies could result in your business floundering before it ever has a chance to fly.

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Your business trademark (also sometimes referred to as your “brand”) is at the core of your distinctive corporate identity. It’s the name or symbol that allows consumers to distinguish your goods and services from those of your competitors. bullets

Registering your trademark is what gives you the statutory right to protect it – and also protects from the challenges of those who might accuse you of infringing upon their trademark. Ideally, our Boston business lawyers would advise registering the trademark at the time you begin the business formation process.

The recent case of Hornady Manufacturing Co. v. Doubletap, decided by the U .S. District Court of Appeals for the Tenth Circuit, illustrates the elements of proving trademark infringement.

Involved here were two firms – the first manufactures and sells firearm ammunition and related products, and the second is described as a “niche” ammunition manufacturer.

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A contractor bid a price of one penny per cubic yard to excavate rock from a town site as part of a larger contract with the town of Avon. That price, however, was based on the town’s estimate of rock to be removed which turned out to be unreasonably low. The actual amount of rock to be removed was 250% higher than the town’s bid documents. The one-penny price was a loss leader based on a line item in the invitation for bid (IFB) and made the bidder’s overall price more attractive. The case is Celco Construction Corp. v. Town of Avon (Superior Court, appealed to Mass. Appeals Court, 2015).

When it became apparent that there was much more rock than represented, the contractor sought assurances, and received them from the town’s water superintendent, that the situation would be “dealt with” once the additional rock had been removed and the total extra quantity was known. Based on this assurance, the contractor continued to work and completed the contract. When the contractor later sought $190 per cubic yard for removing the additional rock, the town refused to pay and ultimately litigation ensued.

The contractor sought payment based on: (1) changed site conditions (the actual amount of work was two and one half times the amount in the town’s IFB); (2) the principle that the contractor should be paid the reasonable value of the extra work performed; and (3) the superintendent’s promises to fairly address the issue later. The Superior Court judge and the Appeals Court found in favor of the town:

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  • Massachusetts G.L.c. 30, section 39N is designed to protect contractors from unknown and unforeseen conditions. The Appeals Court held that this does not protect contractors from an increased amount of a known condition which causes financial hardship because of a low unit price. Had the contractor been able to provide evidence that the additional rock was different in a significant way or that the cost to extract the additional rock was greater by reason of the increased amount or any other concealed condition, the contractor likely would have been entitled to additional compensation. However, in this case, the actual subsurface or latent physical conditions encountered at the site did not differ substantially or materially from those shown in the bid documents. The court stated that the purpose of the statutory protection is to remove unknown risks from the competitive bidding process. Based on the facts of this case, even dramatically increased volume, where pricing is based on unit pricing, is not considered an unknown risk covered by the statute according to the court’s ruling.

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A Massachusetts business lawsuit alleging a pattern of anti-competitive behavior by Keurig Green Mountain since its K-Cup portion pack patent expired mirrors 14 others brought in five states.

The lawsuits allege numerous violations of both state and federal antitrust and anti-competitive laws designed to protect consumers and businesses from unfair competition. businessgraphics2.jpg

The battle has been percolating for years, but the lawsuits came shortly after the announcement of the soon-to-be-released Keurig 2.0. The primary issue is that this newer model will reject all other kinds of portion packs, except those produced by Green Mountain.

Previously two other coffee portion pack companies – TreeHouse Foods and Rogers Family Co. – won lawsuits filed against them by Keurig when they introduced products to the market. Now, Keurig’s latest model will reject products from those companies – and all others.
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Boston business attorneys and First Amendment free speech advocates alike are closely watching the developments in the case of Dietz Development v. Perez, unfolding in the Virginia Supreme Court.
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At the center of the controversy is a business relationship gone sour, followed by a scathing review on a popular online platform.

The plaintiff business in this case is seeking $750,000 in damages for a bad review that a former customer gave him regarding his contracting work inside her home.
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The Hawaii Supreme Court has ruled that a worker can pursue discrimination and retaliation claims against his former employer – but not against his former supervisor in an individual capacity. gavel4.jpg

In a 4-1 decision, justices determined in Lales v. Wholesale Motors Co. that supervisors can’t be held personally liable in retaliation claims. The case has been closely watched because of the issue of personal liability for workers and supervisors who weren’t defended by their employers.

However, our Boston small business lawyers know there are more than a few legal differences between Hawaii and Massachusetts.
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Boston Bar Assosiation