In the latest issue of The Wright Toolbox:
- Protest Deadline Triggered By Silence – read now
- Do You Operate A Drone Or Use Drone Services In Your Business? Better Check Your Insurance Coverage – read now
Protest Deadline Triggered By Silence
You just have to be really careful if you are asserting an agency-level protest. In two solicitations the GAO held that the protester’s challenge to the terms of the solicitations were untimely because the 10 day deadline to protest was triggered – by the government’ s silence. The rule is that when a protester files an agency-level protest, the time to file a protest at the GAO is within 10 days of initial adverse agency action. The problem is that the initial adverse agency “action” can be mere silence by the agency.
In the solicitations at issue, the protester filed agency-level protests with the government objecting to the terms of the solicitations. The protests to the agency were timely filed before the closing date for receipt of proposals. Despite the protests being filed, the government proceeded with the bid openings a few days later. A short time later, the government then provided its decisions denying the protests. The protester, having received the denials, filed its protest with the GAO within 10 days of the decisions. The protests were dismissed as untimely.
The GAO explained that to be considered timely, a protest following an agency-level protest must be filed within 10 calendar days of “actual or constructive knowledge of initial adverse agency action.” 4 C.F.R. § 21.2(a)(3). The phrase “initial adverse agency action” can include inaction by the agency, as long as the inaction is prejudicial to the position taken in a protest filed with the agency. The regulations provide that adverse agency action can mean “the opening of bids or receipt of proposals.” 4 C.F.R. §21.0(e).
The GAO noted that its ruling was consistent with a long line of decisions reasoning that once the contracting activity proceeds with receipt of proposals, the protester is on notice that the contracting activity will not undertake the requested corrective action. The GAO stated that the government’ s actions in allowing the proposal deadlines to lapse, without revising the RFPs, was undeniably prejudicial to the protester’s position. Agency-level protests have many pit-falls, let us guide you through the labyrinth.
Do You Operate A Drone Or Use Drone Services In Your Business? Better Check Your Insurance Coverage
by Jason Potter
A happy couple was enjoying their wedding with their family and friends when disaster struck. The couple hired a wedding photographer to record the wedding and reception. In the course of performing his services at the wedding, the photographer used a drone to take pictures and record video. The drone accidentally hit one of the wedding guests causing the guest to lose her eye. A claim was made against the wedding photographer’s commercial general liability (CGL) insurance policy. However, the insurance company denied the claim asserting that the claim was excluded under the aircraft exclusion provision in the policy.
Eventually, the injured wedding guest filed suit against the photographer asserting negligence and the photographer sought a defense under his CGL policy. The insurance company initially provided a defense under a reservation of rights, but then filed a declaratory judgment action asking the court to declare that the insurance company was not liable under the policy and that it had no obligation to provide a defense to its insured for the injury caused by the drone.
The court noted that the CGL policy specifically excluded any bodily injury arising out of the use of an “aircraft” operated by an insured. While the policy did not define the term “aircraft,” the court held that the word was unambiguous and its ordinary meaning, as defined by Merriam–Webster’s Collegiate Dictionary, is “a vehicle (such as an airplane or balloon) for traveling through the air.”
The court held that the definition of aircraft included a drone. Accordingly, the court granted summary judgment in favor of the insurance company finding that the policy did not cover the claim and that there was no duty to defend the claim. The court even awarded the insurance company the costs of defense it incurred while providing a defense under its reservation of rights.
Drone use is increasingly common, and they can be found in a wide variety of commercial settings, from construction projects, where project contractors or architects use them to monitor the scope and quality of the work, to farms, where drones help farmers check the progress of their crops or to spray them with pesticides. With increasing use comes increasing risk of personal injury or property damage. And, because CGL policies will often exclude coverage for drone-caused damages, it is important that you contact your insurance agent about coverage and determine whether an endorsement to an existing policy or a specialty policy is required to cover your drone related activities.
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