Everything you need to know about qualifying, applying, contracts & stipulations
by Vernon Howerton
October 21, 2019
One of the most discussed and misunderstood areas of the construction industry is the disadvantaged business enterprises (DBE) program. For those who already participate in the program or wish to own and operate a certified DBE, it is critical to know the history and rules of the system. 
Conceived in the 1980s, the DBE program was originally a 10% set-aside (quota) for participation by minority- and woman-owned businesses in federally funded, transportation-related construction projects. The program was intended as a means to remedy past discrimination against women and minorities in the construction industry. 
Under the old program, a contractor bidding a $10 million highway project needed to demonstrate $1 million of DBE participation for their bid to be considered responsive. But President Clinton and the Supreme Court changed the game in the late 1990s after Adarand Constructors, a guardrail contractor, submitted the lowest subcontract bid for guardrail on a Colorado highway construction project, but a higher bid was submitted by a DBE subcontractor. The prime took the high bid over the low to meet its quota for DBE participation.
Adarand sued and ultimately won in the Supreme Court. In Adarand Constructors Inc. v. Peña, 515 U.S. 200 (1995), the court found the program unconstitutional as then implemented. The United States Department of Transportation (USDOT) then amended the DBE program under the auspices of “mend, not end,” thereby creating the precursor to the current DBE regulations.
Qualifying as a DBEMost DBE programs, though implemented by the states via “uniform certification programs,” are based on the USDOT’s DBE regulations. They can be found in 49 CFR Part 26 at ecfr.gov. To qualify as a DBE, the firm must be at least 51% “owned” and “controlled” by one or more “socially” and “economically” disadvantaged individuals.


Ownership & ControlOwnership and control must be real and substantial. Typically, the disadvantaged owner must hold the highest position in the company—president or chief executive officer—and have the ability to control the day-to-day affairs of the business. As a result, generally, the company’s bylaws or agreements cannot provide for supermajority voting on issues, such as borrowing money, purchasing equipment, signing leases and the like. 
The disadvantaged owner of 51% of a business cannot and should not agree to a requirement for a 60% majority vote to take certain actions where the 51% ownership is the basis for the DBE certification. On the other hand, if two women each own 30% of a business and each is considered socially and economically disadvantaged, it is acceptable to have a 60% majority requirement for certain transactions. 
Social & Economic DisadvantageWomen and minorities are rebuttably presumed to be socially disadvantaged. Economic disadvantage is generally based on the owner’s net worth, exclusive of the owner’s interest in their primary residence and the value of their interest in the firm that is seeking certification. And the certifying authority must determine disadvantaged status based on the “totality of the circumstances.” 
Small Business To be certified as a DBE, the firm must also be “small,” based on either its number of employees or total sales in its primary area of business. Size standards are set and published by the Small Business Administration (SBA) based on the North American Industry Classification System (NAICS) code for the firm’s primary area of business. 
When the same individuals own or have the ability to control multiple firms, the firms are considered “affiliates,” and the total employees/sales are aggregated for purposes of the size determination. Firms that have grown too large to be certified as a DBE can still be certified as woman- or minority-owned.
​Keep in Mind When creating a company that is intended to be certified as a DBE, there are numerous other considerations. For example, the disadvantaged owner must acquire their interest for its value to count (e.g., a husband cannot gift his wife or superintendent 51% of a business, then have it certified). Even where the disadvantaged owner’s interest is acquired in exchange for lending their “expertise” to the business, the owner must have a significant financial investment.
In community property states, care must be taken to not acquire the disadvantaged owner’s interest in the business with community property. However, a spouse can legally disclaim any interest in the business as community property. A DBE firm must be independent and not disproportionately dependent on another non-DBE firm. In other words, a heavy highway contractor bidding on public work cannot set up captive DBE subcontractors.
Project DBE goals are no longer considered quotas. Rather, when a project has a DBE “goal,” prime contractors bidding on the work must make “good faith efforts” to attain it. If the low bidder can demonstrate good faith efforts through records of advertising, solicitation of DBE bids, outreach and other means listed in the regulations, the project can still be awarded, even where the low bidder did not achieve the DBE participation goal.
Although there is some wiggle room for awarding authorities, prime contractors are no longer required to award a subcontract to a DBE firm just to meet the goal, if the DBE firm’s quote is unreasonably high in comparison to other bidders’ quotes. DBE contractors are still required to perform a “commercially useful function.” This means the DBE firm must contribute value to the project (i.e., you can’t just award a $1 million contract to a DBE who does nothing except be counted as a subcontractor.)
Deep Into the DetailsPeople who break the rules can go to jail or be fined when they are caught. Anyone who does not believe this should visit the USDOT Office of the Inspector General website (oig.dot.gov) and type “DBE” into the search bar. You will find pages of press releases concerning indictments, prosecutions and fines. 
As recently as Feb. 6, 2019, the U.S. Department of Justice (DOJ) announced a settlement related to DBE fraud. “Contractor A,” as we’ll call them, had graduated from the SBA’s 8(a) DBE program and used Contractor B, an allegedly related 8(a) DBE firm, to pursue business. According to the press release, Contractor B used Contractor A’s “bonding, office space, employees, contractors, software, computers and vehicles.” And Contractor A made high-level decisions and managed the day-to-day operations of Contractor B. 
The DOJ alleged Contractor B lacked “control” of its own operations, and the arrangement was intended to defraud the government. The two contractors agreed to pay the government $3.6 million to settle the case.
DBE fraudsters may also find they are subject to suspension or debarment from bidding and receiving new work from governmental entities, as well as subject to civil penalties under the False Claims Act or similar state laws. A good rule of thumb is not to do anything that will potentially put you in jail or ruin your existing business. 
Bottom line: Seek legal counsel from an experienced attorney and trust them if they simply say, “No, don’t apply.”  

ABOUT THE AUTHORVernon Howerton is a construction law attorney at Gray Reed in Dallas, Texas. He has more than 25 years of experience helping businesses avoid and resolve commercial disputes through negotiation, alternative dispute resolution and litigation, with an emphasis on construction and government contract law. Howerton also has significant experience negotiating and documenting construction contracts and advising clients on the risks associated with various transactions. Contact Howerton at [email protected]. Visit grayreed.com. 

The financial, management, market differentiation & process changes that will prevent total doom
by Gregg M. Schoppman
October 25, 2019
When is the downturn coming? It’s the million-dollar question causing consternation in construction company boardrooms. Whether the next downturn is a depression, recession or simple market correction, there will be ripples experienced across all industries, but perhaps none more than construction.
Undoubtedly, the damage from the last recession is burned indelibly in every leader’s mind, causing varying levels of anxiety. However, it shouldn’t take an economic correction to prompt businesses to shape up. Financial and workforce management, market differentiation and process adherence are surefire ways to absorb any impact and maintain a healthy business.
Financial ManagementIf the Great Recession taught businesses anything, it was the importance of superior financial management, particularly cash flow and collections. Accounts receivable are only good if they generate cash flow in a timely manner. Top firms have a keen eye for collections and adopt a disciplined process for handling risk-prone accounts and customers who slip in the murky waters of 60-days past due.
Additionally, top contractors ensure their cash management through a healthy working capital and ethical, positive overbillings value. This does not mean they lose all semblance of customer service and strong-arm customers, but rather, proactively monitor customer behaviors and ensure managers are doing their jobs. Great leaders should routinely ask themselves:

• What is the age of our average accounts receivable invoice?
• What month-to-month trend do we use to measure client payment reliability?
• Are we cash-flow positive or serving as a no-interest, low-risk lender for customers and clients?

People ManagementAnother lesson from the Great Recession was that talent development waits for no market. Many organizations decided against investing time or money in talent development, even culling team members who no longer made sense. Employee reductions came about as a necessity, rather than as a routine part of doing business. Additionally, many companies paused training and development because budgets didn’t allow for it, and that focus was better applied to work that kept the lights on. 
Many business owners and key leaders, now a decade older and wiser, wonder if this pause in training may have stunted the growth of their teams long term. It’s important to decide for your business what resources should be cut in order to stave off mediocrity, and what resources should be developed and cultivated no matter what. Some key questions worthy of reflection on this topic include:

• Do we hold people accountable?
• Are we developing at all levels?
• What skill gaps exist?
• Who are our top performers, and why?
• Who composes our middle tier, and do they regularly receive feedback to improve their performance?

Market DifferentiationIf your biggest client left you tomorrow, what would you do? Don’t panic yet, but many firms experienced this real concern when the economic collapse occurred, leaving them stranded. 
First, it is important to constantly examine the current workload and the quality of the future backlog. Examining a rolling, 12-month backlog projection is one way to provide an illustration of what the future holds. Then consider the actions required when specific triggers are hit.
For instance, if your firm’s backlog 6 months from now is projecting a 12% dip, what steps must you take to hedge against the repercussions? Simply looking at projected billings 30 days out is too myopic and barely provides enough reaction time. 
Secondly, a firm can examine peaks and valleys in its backlog relative to market niches or sectors. Private/public, commercial/government, hard-bid/negotiated, etc., are all tranches that provide insight and validation to forecasts. As with any projection, there is some level of variability or uncertainty. Handicapping longer-range targets is one approach.



For example, if a strong client has on average 10 opportunities per year and the firm usually wins 50% of those bids, a conservative estimate might project a future backlog of three potential projects for an approximate revenue stream. Questions to consider here include:

• What would happen to our business if our largest account or source of revenue dropped by 50%?
• What group or individual in our firm is seeking new markets and customers?
• What tools or indicators provide the clearest view into our next 12 months?
• If we can’t predict our revenue stream, how are we ensuring we don’t have to live hand-to-mouth?

Process AdherenceSticking with a set of operational best practices serves a firm well, both when times are challenging and when times are good. Posterity measures along with massive behavioral change create a certain level of organizational inertia that is difficult to overcome, making hunkering down during an economic downturn even harder to apply and enforce. 
Performance should be routinely evaluated, and internal processes measured to ensure there is one defined way to do things, and it’s the only way accepted. Ponder the following questions to ensure the processes and tools are the right ones used.

• Do we measure efforts like pre-construction planning and closeout planning and provide routine feedback on that process adherence?
• How many different versions of a meeting agenda exist within the firm?
• What is included in the recipe for a successful project, step by step?
• How well do we do at finishing projects expeditiously and profitably?
• Is our current operational model working, or are our processes fractured by too many new ideas?
• Is our current operational model germane to the new business we are doing?

ABOUT THE AUTHORGregg M. Schoppman is a consultant with FMI Corporation, management consultants and investment bankers for the construction industry. Schoppman specializes in the areas of productivity and project management. He also leads FMI’s project management consulting practice. Prior to joining FMI, Schoppman served as a senior project manager for a general contracting firm in central Florida. He has completed complex construction projects in the medical, pharmaceutical, office, heavy civil, industrial, manufacturing and multifamily markets. He holds a bachelor’s degree and master’s degree in civil engineering, as well as a Master’s of Business Administration. Schoppman has expertise in numerous contract delivery methods, as well as knowledge of many geographical markets. Visit fminet.com or contact Schoppman by email at [email protected].

October 18, 2019 From https://www.ftb.ca.gov/about-ftb/newsroom/news-articles/health-care-mandate.html?WT.ac=Healthcare
The State of California is working to reduce the number of uninsured families with the adoption of a new state individual health care mandate.
Here are three things California residents need to know:
1. Make sure you have health coverageThe mandate, which takes effect on Jan. 1, 2020, requires Californians to have qualifying health insurance coverage throughout the year.
Many people already have qualifying health insurance coverage, including employer-sponsored plans, coverage purchased through Covered California or directly from insurers, Medicare, and most Medicaid plans.
Under the new mandate, those who fail to maintain qualifying health insurance coverage could face a financial penalty unless they qualify for an exemption.
Generally speaking, a taxpayer who fails to secure coverage will be subject to a penalty of $695 when they file their 2020 state income tax return in 2021. The penalty for a dependent child is half of what it would be for an adult.
The penalty is based on your income and the number of people in your household.
Summary of possible penaltiesHousehold Size If You Make Less Than you May Pay
Individual              $45, 500          $695
Married Couple    $91,000           $1,390
Family of 4             $140,200        $2,085

​To avoid a penalty, California residents need to have qualifying health insurance for themselves, their spouse or domestic partner, and their dependents for each month beginning on Jan. 1, 2020.
The open enrollment period to sign up for health care coverage through Covered California is scheduled for Oct. 15, 2019 through Jan. 31, 2020.

2. Exemptions availableThere are exemptions to the penalty, and families will not have to pay a penalty if the cost of their health care coverage exceeds a certain percentage of their income.

Most exemptions from the mandate will be claimed when filing 2020 state income tax returns in early 2021. Additional exemptions from the mandate will be granted through Covered California beginning in January 2020.

ExemptionsExemptions Claimed on Tax Return                                 

• Income is below the tax filing threshold
• Health coverage is considered unaffordable
• Families’ self-only coverage combined cost is unaffordable
• Short coverage gap of 3 months or less
• Certain non-citizens who are not lawfully present
• Citizens living abroad/residents of another state
• Health care sharing ministry
• American Indian/Alaska Native
• Incarceration (other than incarceration pending the disposition of charges)
• Enrolled in limited or restricted-scope Medi-Cal or other coverage from the California Department of Health Care Service

 Exemptions Processed by Covered California

• Religious conscience exemption
• Affordability hardship
• General hardships

3. Financial assistance availableTo help Californians meet the requirement to have insurance coverage, the state will provide financial assistance to qualifying individuals and families, dependent on their household size and income, through Covered California. This new state financial assistance will be in addition to federal financial assistance some already receive through Covered California.
Options for no-and low-cost coverage are also available through the Medi-Cal program.

To find out more about health insurance options and financial assistance, visit CoveredCA.com.
We want to hear from employers, tax pros, tax software providers and insurersThe Franchise Tax Board and Covered California are working together to implement the new state individual health care mandate.

Employers, tax professionals, software services providers (tax, payroll, other), payroll companies, and insurers are invited to attend a stakeholder meeting at Franchise Tax Board headquarters from 1:30-3:30 PM on Thursday, Nov. 14 to learn more about the implementation process, get questions answered and offer input.

Meeting location:
Franchise Tax Board
California Town Center
9646 Butterfield Way
Sacramento, CA 95827
​
For more information about the stakeholder meeting, as well as to submit questions in advance, email: [email protected].

A dissection of the major phishing attack types and the paths to guarding against them
by Scott Lewis
October 10, 2019
​
In today’s connected world, there is a need for collaborative software and services, but these resources could be exposing you to phishing attacks. Couple the need for collaboration with the need for immediate access to data, then add the human factor, and you have all the dynamics for a robust phishing attack. The following are different types of phishing scenarios and how they each target specific people and processes.

• Spear phishing—A targeted attack on a group of emails that were harvested via social media or email lists that were purchased through trade shows, conferences, online newsletters or other organizations and companies—these addresses were supplied by the address-holder when they signed up for a service of some kind and provided their email address
• Whaling—A focused email attack, typically on high-profile individuals, which could include C-suite individuals, such as chief financial officers, chief information officers or chief operating officers
• Smishing—An attack via short message service (SMS) focused primarily on mobile devices and conducted via text messaging
• Content injection phishing—An attack in which phishers insert malicious code or misleading information into emails or websites, encouraging people to input user credentials and password information or perform other activities, such as transfer of funds
• Man-in-the-middle phishing—An attack in which phishers position themselves between the legitimate websites people use, such as social sites or banking sites, and is difficult to detect because it typically continues the transaction and does not create any disruptions 

Getting StartedSo, how can you start a plan to protect yourself and your business? According to Gillware’s data recovery and digital forensics experts, the following are some primary steps to take. 

• Consider compliance—In almost every industry, there are federal and state compliance measures that you have to consider. Regulations like General Data Protection Regulation (GDPR), which is already in effect, applies to any company that processes individual data of European Union citizens, even if the citizens live in the United States. 
• Create an incident response plan—The incident response plan should outline how your company is going to respond in the event that a breach is suspected or confirmed. The program should describe the roles and responsibilities of senior executives because they will likely be the point of contact for coordination and information dissemination. Who will talk to the press (if necessary)? Who will be responsible for the collection or remediation processes and damage control? Your response plan can also outline how those remediation and confirmation steps are going to be addressed and implemented. 
• Use blockchain and artificial intelligence—Consider ways to make yourself less of a natural target. You can do this by keeping your security devices and software up to date. With scammers using increasingly intelligent and speedy methods to gain access, using artificial intelligence (AI)to look for patterns and analyze risks is becoming more and more critical to overcome emerging threats. For instance, Bandura’s Threat Intelligence Gateways, which block known internet protocol (IP) and domain threats, is a good example of how AI can bolster your security.
• Protect your email system—Email systems continue to be the favorite spot for phishing attacks and other viruses, such as cryptoviruses and ransomware, along with a multitude of other malware. In systems like the Microsoft Office 365 E5 plan, users can take advantage of the anti-phishing option in the security and compliance center, with instructions in the user portal on how to configure for your application. In-house systems also have many tools to choose from— companies like Symantec, Barracuda and many others offer advanced phishing detection and prevention features. Remember: No single device will protect you. Security is a layered approach with many nets to trap the emerging threats. 
• Stop data breaches before they start—This begins with good employee policies and ongoing training for employees to identify those who may be more susceptible to phishing and security attempts. Also be proactive in keeping your systems up to date. 

Spotting a ScamWhen you have updated systems, new firewalls, advanced threat detection and antivirus protection in place, but you still become a victim of a phishing scam, you’re left to wonder, “How can this be happening?” According to Protected Trust, cloud security and productivity company, here are some things you can watch for: 

• Are you familiar with the sending address?—Take the time and read the email address. One way to help spot small subtle changes is to read the email address backward. It might sound funny, but it makes your brain stop and think about what you are reading, instead of using the human condition to understand what it expects to see. Other questions to ask: Do you know this person? Have you ever exchanged emails with them before? Are they asking you to do something that is outside of the norm or expected? If it seems fishy, then don’t hit “Reply” or “Reply All,” but type the actual body of the email in the “To” or “CC” field.
• Are there misspellings?—Several spelling errors in the email address and the body of the email are warning signs. Turn on spell check to ensure that the message is highlighting these spelling errors.
• Is there a high sense of urgency?—If the sender is insisting that you have to act now, this elevated sense of urgency should be a red flag. Remember: The lifespan of a phishing site is only 15 hours, so things must happen quickly. 
• Is the scammer trying to direct you to a new URL?—If the message says, “Visit this link and input your username and password,” it’s a red flag. Instead of clicking on the link, use Google to look up the URL. You can also hover your mouse over the link, and it will show you the fully qualified address of where you would be directed if you clicked on it. On mobile devices, you can use a light touch to see the fully qualified address. The risk here is that if you press too hard, you will be directed to the phishing site. Always remember that your bank, the Internal Revenue Service and other government agencies will not contact you directly via email.
• Does the URL feature a closed lock?—Make sure that the URL line features the image of a closed lock or begins with “https://.” Specifically, the “s” indicates this is a secured website. Also, your browser may put a circle with a red “x” or hash sign through unsecure URLs.

All of these steps are important; however, the real weakness is in human conditioning. As such, it is essential to communicate and train employees on the risks of phishing, how it happens and what they can do to be aware of the dangers. Several products allow you to test your employees with fake phishing attempts. These will help you identify who within your employee base is likely to fall prey.

ABOUT THE AUTHORScott Lewis is the president and chief executive officer of Winning Technologies Inc. He has more than 30 years of experience in the technology industry and is a nationally recognized speaker and author of technology subjects. Visit winningtech.com. 

by Tim Mages
October 14, 2019
It’s easy to forget that the Great Recession was just a decade ago. Today, the national unemployment in the United States sits at just 3.7%—a far cry from the record high 10% in 2009. Although there is no stock-buying mania on Main Street like there was in 1999, and no economic promise that "this time is different"—we cannot forget that millions of Americans learned their lessons the hard way. 
First and foremost, lessening the impact of a future recession on your company comes down to planning. It’s often said, “Don’t ride the highs too high or the lows too low.” A team’s ability to prepare in advance by taking steps that lessen the recessionary impact is key for small businesses everywhere.
Wall Street and financial mavericks and mavens can argue all day about when the next recession will hit, but the reality is, economies fluctuate and another recession is not an if, but a when. Here are some thoughts to help small business owners plan early and to manage or navigate through the next recession.
Like anything in life, it is easier to fix your problems here and now, alongside a strong economic tailwind, versus being reactive during the next downturn. While not exhaustive, each thought provides steps to consider. The following is a checklist for preparing for a recession. 
1. Cash Is KingPart of the challenge with a recession is we never know in advance how it will impact the business. It is easy to think about direct impacts to your revenue from a slowing economy, but how will your business hold up if a customer goes bankrupt and can’t pay for work already completed by your business? Or a supplier is unable to meet your needs and immediate short-term alternatives double your initial cost estimates? Your cash reserve, whether it is cash on hand or availability through your lenders, is first and foremost in managing any challenges.



2. Measure Productivity Balance declining top-line trends by identifying as many variable costs in your business as possible, including underperformers. During the last economic downturn, many businesses planned for a 15% decrease in revenue to equate to a 15% reduction in payroll. In reality, this turned deadly.
As downward trends continued and sales dropped 30% to 40%, it was a challenge for businesses to catch up. Prepare for the long term by identifying ways for the entire team to do more with less from the start.
3. Assess Your Meaningful SuppliersIf you have not recently assessed your meaningful suppliers, now may be a good time to review their market position. Research what other customers are saying about your supplier, have discussions with them and their preparations for a downturn, and pull data or review industry sources to assess their business performance and risk.
This is good business practice even in growth years, but becomes even more critical ahead of a recession. Nothing can disrupt your business and your reputation more than a supplier you rely on suddenly having a major “hiccup.” Don’t allow the success or failure of your suppliers to define the fate of yours.
4. Manage Customer Concentration Diversifying your customer base could be the difference between exiting a recession strong or “limping” into the next growth cycle. A multibillion dollar customer that is 30% of your business is a liability, not a safety net. While your high-performing customers will likely survive a recession, financial strain could pressure them to take actions that put your contract at risk. Consider any one customer comprising over 10% of your total revenue a liability and work now to diversify.


5. Reduce LeverageNow is a difficult time to take on additional debt or leverage to acquire equity interests of other owners, execute on an acquisition, or to enter into a risky project with a long-term payback. Many companies took on large amounts of debt during 2007, only to encounter many challenges over the next 4 to 7 years dealing with reduced revenue and the impact on meeting obligations to debt holders.  Our company is constantly examining financial projection stress tests to assess our overhead feasibility at various leverage levels should revenue decrease.
6. Shop for Options Ahead of TimeBetween 2008 and 2012, 465 banks failed. If your company relies only on lines of credit from your bank, consider the impact of your bank closing or shutting off lending to your industry segment. Make the time to talk to alternative financing sources.
Should an immediate need emerge that requires additional capital, be sure to have your options identified and understood beforehand, rather than when you’re in a pinch​.​

​ABOUT THE AUTHOR

Tim Mages is the chief financial officer of Expansion Capital Group (ECG), a business dedicated to serving American small businesses by providing access to capital and other resources so they can grow and achieve their definition of success. Since its inception, ECG has provided approximately $350 million in capital to over 12,000 small businesses nationwide.

The ABC Independent Contractor Test

Recently, the California Legislature codified much of a previous California Supreme Court ruling relating to independent contractor classifications. For a worker to be properly classified as an independent contractor (sometimes called a “1099 contractor” or “1099 employee” ), they must pass certain tests under federal and state law. California employers have been subject to the “ABC test” since April of 2018 because of a California Supreme Court ruling. Effective January 1, 2020, the ABC test will become part of California’s statutes as well.

The fact that the law is now written into the Labor Code is drawing significant attention, much of which is focused on the gig economy and its workers. But the test applies to all employers. The primary difference between the law now and the law as of January 1 is that the new statute includes certain types of workers that will not be subject to the ABC test, but instead a less strict test (Borello) .

The ABC Test
A worker may be classified as an independent contractor only if:

A. The worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of such work and in fact;
B. The worker performs work that is outside the usual course of the hiring entity’s business; and
C. The worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity.

Unless all three elements are true, the worker will be considered an employee. A more in-depth look at each of these three factors can be found on the HR Support Center by searching for ABC test with the search bar.

Be aware that the right to be treated as an employee cannot be waived, so even if a worker begs to be paid as an independent contractor and signs something to that effect, they must be treated as an employee unless they pass the applicable test.

The Exceptions
The workers listed below will not be subject to the ABC test, but instead the Borello test. The factors evaluated in Borello still create a fairly high bar for classifying a worker as an independent contractor, which is explained below.

Workers exempt from the ABC test but subject to Borello include the following:

• Licensed insurance agents
• Certain licensed health care professionals
• Licensed lawyers, architects, engineers, private investigators, and accountants
• Registered securities broker-dealers or investment advisers
• Direct salespeople who are exempt from unemployment insurance
• Real estate licensees (may be subject to tests other than Borello)
• Commercial fishermen
• Certain providers of professional services (full list in the HR Support Center)
• Others performing work pursuant to a subcontract in the construction industry if certain criteria are met

The Borello Test
The Borello test is a multi-factor test, similar to the DOL’s Economic Realities test for independent contractors. The primary factor is whether the employer has control or the right to control the work done as well as the manner and means in which the work is performed. Borello provides eleven more factors or questions that will help you determine the appropriate classification for a worker. An employer must evaluate the answers as a whole and determine whether the working relationship and conditions point toward an employee or independent contractor relationship. You can find this test by searching for Borello using the search bar on the HR Support Center.

Legal Disclaimer: The HR Support Center is not engaged in the practice of law. The content in this email should not be construed as legal advice, and does not create an attorney-client relationship. If you have legal questions concerning your situation or the information you have obtained, you should consult with a licensed attorney. The HR Support center cannot be held legally accountable for actions related to its receipt.

Factors to consider before placing your bid on a federal project
by Deborah R. Huso and Ryan MacArthur
September 19, 2019

William Goad pats the pockets on his faded jeans looking for his cellphone. He checks the time (it’s 5 a.m.) and nods. “I like getting on the base early,” he says. “That way, I can get to the job before anyone is even on the road.” Goad is off to Joint Base Langley-Eustis in Hampton, Virginia, to drop off supplies.
The 70-year-old master electrician at Abbott General Construction Inc. in Hampton, Virginia, slides behind the wheel of his white work van. The back is full of electrical wires, conduits and decades’ worth of bits and bobs from countless government contracting jobs. 
Over the course of his career, Goad estimates he’s been involved with dozens of government construction contracts. “There have been so many I’ve lost count,” he says.
Whether it’s estimating materials costs or installing electrical wiring and control equipment, he sums up his decades of experience with government contracts in one sentence: “They’re competitive and hard to get, but there’s good money in them.” 
Government Construction ContractsEvery year, the federal government and state governments award billions in construction contracts. According to the Federal Procurement Data System (FPDS), in 2018, the 20 federal agencies that spent the most on construction awarded $27 billion in contracts. And the fiscal year (FY) 2019 appropriation bill provides over $10 billion for military construction projects alone, while also funding the United States Army Corps of Engineers (USACE) Civil Works program with an additional $7 billion to build new roads and restore existing highways.


It may seem daunting for a small contracting firm to approach the government for work, but plenty of opportunities exist. In fact, the U.S. Small Business Administration (SBA) reports that the federal government met its goal of awarding at least 23% of federal contract dollars to small businesses for the last 5 years.
The federal government also aims to award 5% of contracts to women-owned small businesses; 5% to small, disadvantaged businesses; 5% to HUBZone small businesses; and 5% to service-disabled, veteran-owned small businesses. In total, $120.8 billion dollars went to small businesses in 2018.
Before the BidAccording to Nicole Ingram, founder and principal designer of Stacy Nicole Inc. in Cary, North Carolina, the keys to winning a government contract are understanding the bidding process, paying attention to the details, and having a strong strategy. Ingram knows all about government contracts. 
Prior to developing a successful construction business in Atlanta, Georgia, and before becoming one of the most sought-after interior designers in North Carolina, she first learned about government contracts by helping a friend. “Before I started my construction business, I was hired to do bidding for a friend’s janitorial company,” Ingram said. “It was a long process that took a lot of time. The first step is registering with all the websites.”
Any company interested in doing business with the federal government has to first register on the System for Award Management (SAM), the official website of the General Services Administration (GSA). At a minimum, you’ll need to provide your firm’s legal business name, physical address, and Dun & Bradstreet Universal Numbering System (D-U-N-S) number, along with your Tax Identification Number (TIN), taxpayer name and banking information. Business owners have to update their profile every year, or it becomes inactive. 


After registering, contractors can search for bids on the Federal Business Opportunities (FBO) website, fbo.gov. The site serves as a virtual classified section or community corkboard of sorts on which the government posts “help wanted” ads for any contract valued
over $25,000.
The registration and contract-hunting processes, though time-consuming, are fairly straightforward. But developing a winning strategy to secure an award is a whole different game.
Getting StartedIn 2018, Clark Construction Group LLC won a government contract to build a new Air Force One hangar in Prince George County, Virginia. According to Bloomberg, the contract is potentially worth $315.5 million. It’s difficult for any contractor not to get dollar signs in their eyes when they see numbers like those, but Ingram says a solid strategy starts with first getting a foot in the door.
“Subcontracting is a great way to start if you want to get into government contracts,” said Ingram. “When I was primarily in construction, we worked with an architectural firm on a contract to pour concrete for them. That gave us the opportunity to get to know the people in charge of bidding and create those relationships.”

Like any business, government contracts are built on trust and a solid return on investment. According to Goad, the contract often goes to a firm with which the awarding agency has already worked. 
“Oftentimes, it’s about who you know or whether they’ve worked with you before,” said Goad. “It’s a lot cheaper to work with a company that already knows how things work.”
For business owners who do not have a professional network that allows them to directly contact a bidding officer or primary contractor, the government offers resources to connect small businesses with subcontracting opportunities. According to the SBA, some government contracts stipulate the prime contractor must subcontract with a small business. Websites like The SBA Subcontracting Network (SubNet) and Department of Defense’s subcontracting opportunity directory both display available contracts and the primary’s goals for the project.
Bid StrategiesWhen it comes to bidding on a government contract as the primary, Ingram says it’s all about research, patience and attention to detail. “If you make one mistake, you could get eliminated,” she said.
Ingram advises researching the project thoroughly once you have found an attractive contracting opportunity. “Find out who the contracting officer is,” she said, “and see if he or she is someone you’ve worked with as a subcontractor.”
It’s also critical to ensure your business aligns its skill set with the contract. “Having a niche is very helpful,” Ingram said.


The next step is to review the requirements for the bid proposal: what it needs to include, how to assemble it, and the method for submission (electronic or mail). The contract’s processor will weed out non-compliant proposals at the start of the evaluation process.
 While having an airtight, perfect bid proposal is a plus, Ingram and Goad both agree establishing and strengthening the relationship between your business and the government is vital. Each contract that a business completes contributes to its past performance rating. The government appraises the work and rates the contractor—similar to assigning a report card. Higher ratings equal better opportunities. Smaller contractors who take on big jobs risk underperforming and receiving a poor rating. 
Making Bidding EasierTo help find the right bids and get a leg up on the competition, contractors have a variety of tools at their disposal, such as BidSync and eBacon. BidSync is a software application that helps businesses quickly find relevant and winnable bids. Using an AI-powered relevance engine, BidSync grants users real-time access to an extensive number of agencies and available bids. The software also weeds out irrelevant bids and can cut down the amount of time contractors spend looking for the right contract.
“Government suppliers consistently voice frustration with the amount of work they have to put into finding new, relevant government opportunities,” said Brian Utley, chief executive officer (CEO) at Periscope Holdings, BidSync’s parent company. “Suppliers are tired of wasting time sifting through pages of search results that will never generate a single sale.”
BidSync’s true value comes from mitigating guesswork and manual labor, and leveraging machine-learning technology. The more contractors use the application, the more the system learns about and improves the relevance of the bids it finds.
Beyond the effort involved in identifying them, government contracts require absolute commitment to compliance, as well as substantial administrative work, both of which cost time and money. Software products like eBacon help contractors make their bids more competitive by reducing fringe costs and taxes, as well as administrative burdens.
“Our platform was built specifically for contractors,” said Jack Biltis, president and co-founder of eBacon. “We reduce the administrative burden on prevailing-wage and union projects, and make sure every minute worked is paid at the correct rate and fringe amount.” The platform combines time and attendance, payroll and fringe-benefits management to automate payroll calculation and certify report/upload generation. 
eBacon also automates complex processes like restitution calculation, daily job reporting, union reporting, job budgeting, new-hire paperwork and apprentice tracking. “A typical 20-man company will usually save $67,000 a year in fringe savings and 35 hours a week in administrative time,” said Biltis.
Federal contracts offer a wealth of opportunity for small businesses. Whether it’s taking advantage of professional connections, getting your foot in the door via subcontracting or bidding on contracts the old-fashioned way, a contractor must know their company’s unique advantage and how to communicate it to start winning government contracts.