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Construction Law Authority / Procurement  / Think “Green” When Bidding on Public Construction Projects

Think “Green” When Bidding on Public Construction Projects

As more state and local governments incorporate green building standards into public construction projects, it becomes important for participants such as contractors and design professionals bidding on those projects to pay attention to the “green” details.  Some projects may require a certain certification rating or level of energy efficient performance.  Some projects may seek a bidder or proposer with have general or specific green qualifications or experience. 
 
Because green building is a relatively new area for many local governments, their bid or proposal specifications may not fully address all the issues.  For example, to what extent will a bidder be evaluated on its green credentials or experience?  If the bidder does not list any green credentials, will it be deemed non-responsive or non-responsible?  Will a bidder’s lack of green qualifications be deemed a minor irregularity or a material issue?  Generally, in determining whether a bid or proposal is non-responsive, the decision for the agency is whether there are material irregularities that cannot be waived. Generally, minor irregularities or technicalities that do not affect price or give a bidder a competitive advantage can be waived in the discretion on the agency. On the other hand, if the irregularity calls into question whether the bidder is capable of performing the contract or, if waived, would provide the bidder with a competitive advantage over the other bidders, then it cannot be waived.
 
Pennsylvania’s Supreme Court rejected a protest on a $20-million LEED project.  An electrical contractor who responded to a Request for Proposals (RFP) cried foul when it did not get the award despite offering the best pricing terms.  The contractor said the procuring agency improperly considered the proposers experience with LEED certification even though that was not listed in the solicitation criteria of the subject RFP.  The agency rejected the protest because it said the winner earned the highest technical score.  It was also noted that the RFP specifically referenced LEED experience in a couple of the evaluated categories (which the winning proposer appears to have had).

 

Typically a bid is considered responsive if it conforms in all material respects to the specifications. This means the bidder has to provide all of the information sought in the Invitation for Bid (IFB), and follow the instructions for submission. A bid is considered responsible if it appears that the bidder has the ability to perform the contract. If an agency does not think a bidder can do the work as it claims, even if that bidder submits the best price, it may not get the award.  Likewise, an RFP must contain all of the terms, specifications, and evaluation criteria so that all of the proposers know how to adequately respond. The evaluation criteria should be explained, and is usually expressed in terms of points awarded for each specific criterion, or the percentage of weight given.
 
Contractors and design professionals must be mindful of new green related evaluation criteria in the specifications.  While they may be readily apparent in vehicles such as Requests for Qualifications, the criteria may not be as apparent in RFPs or IFBs.

Originally posted on the The Green Building Law Blog
Mark J. Stempler

Mark Stempler

mstempler@bplegal.com

Mr. Stempler focuses his practice in the areas of construction litigation, government bid protests, and civil litigation. He is Board Certified by the Florida Bar in Construction Law, and is certified as a LEED Green Associate by the United States Green Building Council. He represents clients in commercial and residential construction lawsuits, involving defects, delays, contractual disputes, mold claims, liens and lien disputes, bond claims, and insurance disputes. Clients include owners, developers, general contractors, subcontractors, design professionals, sureties, and manufacturers.

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