proposals | Construction Law Authority

Don’t Underestimate the Importance of Repair Estimates When Evaluating Your Construction Defect Claim

February 8, 2013

Investigating and placing potentially responsible parties on notice about the existence of construction or design defects against Developers, Contractors or Design Professionals in accordance with Chapter 558, Florida Statutes, is an important part of the claims process. As their defect claims progress, Individual Property Owners and Condominium Associations may need professional assistance from their attorneys and design consultants in calculating the potential costs to correct construction or design defects. There are many other reasons why Owners or Associations would want to obtain repair proposals or estimates. For example, while repair estimates may help Owners and Associations budget for repairs, they may also help Owners and Associations to prioritize their claims for settlement purposes. Repair estimates enable Owners and Associations to identify any defects they may wish to withdraw from their Ch. 558 pre-litigation construction defects claims, or from litigation, during the course of settlement negotiations. When negotiating a...

Government Bid Protests – An Overview (Part III of III)

February 23, 2011

Mark J. Stempler

Procurement

In many bid protests, the ultimate question is whether the bidding irregularity or irregularities at issue gave the winning bidder or proposer an unfair advantage over the other bidders or proposers. But, not all irregularities matter. If it’s a material irregularity, like the winning bidder changing its price after the bids have been submitted and evaluated, and contrary to the specifications, that may be considered material. But if it’s a minor irregularity, public agencies typically reserve the right to waive those.

Guess who decides whether an irregularity is material or minor. The agency. Also, keep in mind that public agencies are generally afforded wide discretion in soliciting and accepting bids, and in interpreting their own rules and requirements. In one Florida case, a bidder submitted a cashier’s check instead of a the bid bond required by the Invitation to Bid. The agency, and later the court, determined that since the cashier’s check accomplished the same purpose as the bid bond, it was considered a minor irregularity. In that case the fact that bidder at issue was also the lowest bidder, and acceptance of the bid saved the agency money on the project, may have motivated the agency’s decision.

Suppose you file your protest, and someone like the purchasing director, for example, denies the protest on the merits. Can you go straight to the courthouse to file a lawsuit? The answer is probably not. Administrative remedies must be exhausted before you can seek relief from the courts. This means that you have to go through the protest procedure, and see it through to the end. You may be required to have a hearing before a hearing officer which is a trial-like procedure. At the end, the hearing officer may make a recommended award based on the facts presented. That recommended award goes back to the agency, who may make the final award.

Keep in mind that a hearing officer’s recommended award is just that, a recommendation. The order is not automatically reviewable by a court. There may be times where a protestor can have a non-final order reviewed, but likely only if there are immediate negative consequences and review of the administrative agency’s action will not be good enough.

The ABCs of Bid Advertisements and Acronyms

November 23, 2010

Mark J. Stempler

Contracts, Procurement

Mark J. Stempler Have you ever responded to an ITB after being shortlisted in response to an RFQ? If you are seeking a government contract and don’t know what any of this means, don’t worry, you are not alone. Public agencies advertise their contracts and projects through a variety of methods and vehicles, which are usually referred to by acronyms. While they seem confusing at first glance, once you become familiar with the terminology, you’ll be able to better respond to the advertised project.

An Invitation for Bid (“IFB”), or Invitation to Bid (“ITB”), is usually a set of specifications that have been decided on and defined by the advertising agency. Price is usually the most important factor. The bidder that’s has the lowest price usually wins the award. However, the bidder also has to be responsive and responsible. The bid is generally responsive if includes of the information sought in the ITB’s or IFB’s specifications. A bid is considered responsible if it appears that the bidder has the ability to perform the contract.

Agencies usually use Request for Proposals (“RFP”) when they do not know what all the specifications or scope of work will be. Proposers may be required to submit a plan describing how they plan to perform the project. Price is generally still a factor, but there may be other factors like experience, capability, and management ability. Like an ITB or IFB, agencies will evaluate whether the proposals are responsive and responsible.