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Construction Law Authority / Articles posted by William J. Cea

Getting Started with Public Bidding

Do you provide goods or services that public agencies purchase? Do you want to pursue public contract awards? Do you know how to get started? These are questions that you may have asked yourself. If you are looking to bid on public contracts, then there are some steps that you can take to put a plan into action. First, you should identify public agencies that need your goods and services. Some agencies may have purchasing cycles for particular goods and services and knowing when those opportunities will be advertised is critical. Most agencies maintain websites with links to their purchasing departments and/or purchasing procedures. They may also have representatives that can provide guidance on doing business with the agency and whether there are any registration or pre-qualifications requirements. The websites may also list the pending advertisements and bidding deadlines. Prior to contacting an agency, however, be mindful that there may be...

Pay Attention to the Solicitation Requirements for the Bidding Entity

When submitting a bid to perform public work, pay attention to the solicitation requirements for the bidding entity. Must the bidding entity possess a particular license? Can any of the work be subcontracted? Do subcontractors have to be listed in the bid? These are all important questions that should be evaluated well in advance of bid submission. Failure to adhere to these requirements may result in disqualification. Similarly, bidders oftentimes rely on the qualifications of parent or affiliated companies to fulfill experience components of a solicitation. Here too, bidders should carefully review whether such reliance will be considered responsive or if the bidding entity itself must directly possess all of the requisite experience. For example, Florida Statutes defines “Responsive bid,” “responsive proposal,” or “responsive reply” to mean a bid, or proposal, or reply submitted by a responsive and responsible vendor which conforms in all material respects to the solicitation. What if the...

Bid Alert: Review The Contract Terms

If you intend to provide a service to a public agency, be sure to consider the impact of long term contractual issues on the cost and profitibility when preparing the proposal. The agency’s contractual requirements are typically incorporated into the solitication. If they are not, you may have to inquire as to what they will include prior to submitting a proposal. It is imperative to know whether performance of the contract is doable and sustainable. For example, are there upfront costs that will be incurred?  What if the contract has a termination for convenience clause?  Will you lose your investment? Are there insurance and bonding requirements?  How much will these items cost? Is there a mechanism to seek price adjustments in the event your costs increase?  If so, what is the likelihood that the agency will actually approve cost increases over the lifetime of the contract? These are the types of questions...

Bid Protests Under Chapter 120: Watch the Clock

If you want to challenge the terms of a solicitation or intended award decision and Chapter 120, Florida Statutes applies, then watch the clock. Chapter 120, which is referred to as the Administrative Procedure Act, generally applies to state agencies and departments. Local governments, including counties and cities, typically have their own codes and policies regarding bid protests. Where Chapter 120 applies, there are strict deadlines that must be adhered to. Section 120.57(3), Florida Statutes, in pertinent part, states: “Any person who is adversely affected by the agency decision or intended decision shall file with the agency a notice of protest in writing within 72 hours after the posting of the notice of decision or intended decision. With respect to a protest of the terms, conditions, and specifications contained in a solicitation, including any provisions governing the methods for ranking bids, proposals, or replies, awarding contracts, reserving rights of further negotiation, or...

Public Contracting: When Can I Be Heard?

Bidders may have an opportunity to be heard during evaluation committee meetings or in conjunction with other proceedings during a competitive solicitation process.  Members of the public also have the right to a reasonable opportunity to be heard in accordance with a recently enacted Florida Statute, Section 286.0114. Section 286.0114 went into effect on October 1, 2013, and provides that members of the public have a right to be heard on a proposition before a Florida “board or commission” takes official action.  The opportunity to be heard does not need to occur at the same meeting that the official action takes place, so long as it occurs during the decision making process and is within reasonable proximity in time before the official action is taken.  The board or commission may, however, adopt rules or policies, including limitations on the amount of time that an individual may speak and the number of...

Florida Public Bidders Must Understand the “Cone of Silence”

In Florida, public agencies typically have restrictions on bidder communications with public officials and employees. For example, an agency may have a prohibition on communicating with anyone other than a designated representative during the competitive solicitation process. These restrictions are often referred to as a “Cone of Silence”. Violations of the Cone of Silence can result in disqualification of the bidder. The purpose of a Cone of Silence is to prevent bidders or their representatives from lobbying decision makers while designated staff are afforded the opportunity to evaluate the bids or proposals in accordance with the terms of the solicitation. The restriction on communications may, for example, terminate when the agency’s board or commission meets to make a final decision. At that time the bidder may be able to address the board or commission directly before it makes a final award decision. While the restriction is in place, however, bidders must...

New Public Records Requirements for Contracts with Public Agencies

The Florida Legislature recently enacted Florida Statutes, Section 119.0701 (Chapter 2013-154) which requires that contracts for services with public agencies, where the contractor is acting on behalf of the agency, must provide a provision mandating compliance with the public records laws.  Specifically, Section 119.0701(2) mandates that the provision require the contractor to: (a) Keep and maintain public records that ordinarily and necessarily would be required by the public agency in order to perform the service. (b) Provide the public with access to public records on the same terms and conditions that the public agency would provide the records and at a cost that does not exceed the cost provided in this chapter [119] or as otherwise provided by law. (c) Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law. (d) Meet all requirements for retaining public records and transfer,...

Are You A Design-Build Firm?

Based upon weekly bid reports, the trend in Florida continues to emphasize design-build requests for proposals ("RFP") for public works projects. Public agencies view the design-build model as a means to streamline the procurement process as well as an opportunity to contract with one firm which has the responsibility for both the design and construction of a project....