Berk & Moskowitz, P.C.
Attorneys at Law 
April 2009
Welcome to the next issue of the Berk & Moskowitz newsletter!  Thank you for those that gave us feedback on our last issue. We hope that you will find this issue interesting and informative.  If you have any questions or suggestions, please let us know.

Kent Berk & Frank Moskowitz
Each edition, we provide a law-related joke, quote or story to hopefully bring some humor into your life and "ease" your day.
ATTORNEY: What was the first thing your husband said to you that morning?
WITNESS: He said, 'Where am I, Cathy?'
ATTORNEY: And why did that upset you?
WITNESS: My name is Susan.
ATTORNEY: What gear were you in at the moment of the impact?
WITNESS: Gucci sweats and Reeboks.
  Front of Building
Will the 2009 Federal Economic Stimulus Package Lead to More Bid Protests?
On February 17, 2009, President Obama signed into law the much anticipated stimulus package known as the American Recovery and Reinvestment Act of 2009. Under the $787 billion Act, $27.5 billion has been allocated for highway restoration, repair, and construction. According to some estimates, Arizona may receive as much as $522 million for highway related projects.
There are strings attached, however, including "use it or lose it" provisions. For example, within 120 days following the date of apportionment of the monies to the States, 50% of the monies awarded to a State for highway projects that are not obligated will be lost and redistributed. Additionally, if a State does not obligate highway funds one year from the date of apportionment, the monies will be redistributed to other states, unless the State can establish that it has encountered "extreme conditions that create an unworkable bidding environment or other extenuating circumstances."
The new law contains a special provision with regard to contracts that it funds. It calls for fixed-price contracts garnered through the use of competitive procedures to the "maximum extent possible." The new law also gives protection to whistle-blowers that report violations related to agency contracts awarded involving covered funds.
At the same time that many state and local governments are dealing with being understaffed and over budget, the new stimulus package may very well present them with the added pressure of quickly having to conduct competitive bid processes. This may lead to mistakes and shortcuts in a process that is supposed to be free of even the appearance of impropriety. 
There is also a "Buy American" provision that, with certain exceptions, mandates the use of American iron, steel, and manufactured goods in connection with constructing, maintaining or repairing public buildings and works funded by the new law. There is also a "Wage Rate Requirement" that protects laborers and mechanics employed by contractors and subcontractors on projects covered by the Act.
The new law calls for the creation of a website that is to provide, among other things, information about contracts awarded by the Government, including information about the competitiveness of the contracting process, as well as a link to information about solicitations for contracts to be awarded.
Contractors who are looking to sustain or revive their businesses should consider the many government projects and business opportunities that will likely result from the new law. Contractors should also consider the possibility that more bid protests may result due to the amount of money at stake and time pressures created by the new law, and the overall state of our economy.
Bid protests provide a beneficial "check and balance" in government contracting, helping to ensure that the process is truly competitive and in the best interests of the government. Interestingly, according to federal bid protest statistics, bid protests are surprisingly successful. According to the U.S. Government Accountability Office (GAO) 2008 annual report, there were 1,652 protests filed in 2008, which was an increase of 17% from 2007, and protesters were "effective" (meaning a protester received "some form of relief from the agency") in 42% of the cases.

What is Undue Influence in Will Contest Cases?
In our last issue, we discussed the standards for shifting the burden of proof in Will contest cases.  This month, we explain what is undue influence and what elements Arizona courts consider in deciding whether undue influence played a role in the execution of a Will.
Basically, undue influence is where an individual exercises such control over the testator (the person signing the Will) that the Will does not reflect the testator's true intentions and desires, but, rather, reflects the intentions and desires of someone else.
In determining whether undue influence was used, the courts look to the totality of the circumstances, but generally focus on the following factors: whether the influencer made misrepresentations to the testator; whether the Will was prepared and signed quickly, without deliberation; whether the execution of the Will was hidden from others; whether the person benefited by the Will participated in having it drafted and signed; whether the Will was inconsistent with prior plans; whether the Will was reasonable in view of the testator's circumstances, attitudes and family; whether the testator was vulnerable to undue influence; and whether the testator and the beneficiary had a close relationship.
In This Issue:
Will the Stimulus Package Lead to More Bid Protests?
What is Undue Influence in Will Contests?
About our Firm
Office Space for Lease
Book List
Property Omitted from Divorce Decree

About our Firm 

Berk & Moskowitz is dedicated to providing topnotch and efficient legal representation.  We handle a wide  variety of matters involving disputes, arbitration and litigation, including:
Personal Injury & Wrongful Death
reception area
Office Space for Lease
We have a prime brand new office suite for lease adjoining our suite.  If you are interested, please call or click here to view the flyer.

Book List 

We thought that it would be fun to share with you the  books that some of us have recently read. Please share the books on your list.

Kent: Three Cups of Tea, by Greg Mortenson and David Oliver Relin.  They detail Mortenson's heroic efforts to teach peace in Pakistan and Afghanistan by building schools.  Started as a mission to build just one school in a remote mountain village, Mortenson has since built 78 schools.

Daphne: The Shack, by Wm. Paul Young. After Mackenze's young daughter is abducted and murdered, he wonders how God can let such bad things happen.  So God invites Mackenzie to the shack where his daughter was killed. Mackenzie asks God the questions that torment him, and finds the answers that put his soul at ease.

Property Omitted from Divorce Decree Is Not Subject to Review
In a decision issued March 17, 2009, the Arizona Court of Appeals ruled that community property intentionally omitted from a divorce decree and converted by law to separate property is not subject to division in a post-decree dissolution proceeding.

In that case, the husband and wife intentionally excluded a community property condominium from their stipulated divorce decree. In a unanimous decision, the Court of Appeals found that, upon a post-decree motion filed by the husband, the trial court improperly ordered the wife to convey a one-half interest in the condominium to the husband.

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Berk & Moskowitz, P.C. - Attorneys at Law
14220 North Northsight Boulevard, Suite 135
Scottsdale, Arizona 85260
phone 480-607-7900     fax 480-607-7300