cea_william_20170118Becker & Poliakoff attorneys, led by shareholder William Cea, have secured a significant court ruling in favor of their client, Premier Parks, ending this case and providing for open competition to bid on a future water park planned for 65 acres in Fort Lauderdale (Premier Parks v. City of Fort Lauderdale).

Premier Parks, the parent company of Rapids Water Park in Riviera Beach, filed suit in October 2015 after the City tried to allow Schlitterbahn, a waterpark operator, to build on a 65-acre property owned by the City, including the existing Ft. Lauderdale and Lockhart Stadium facilities. After buying out the Federal Government’s interest in the land in 2015, the City agreed to enter into a 30-year lease with Schlitterbahn. Premier Parks argued that the City should have been required to obtain competitive bids for the project and the court agreed.

Gary Rosen, managing shareholder of Becker & Poliakoff, said: “This was a challenging case and we believed in our client’s right to compete for an opportunity to develop the property. We are extremely pleased for our client and are very gratified that the court has agreed with our view that the city should have submitted this to public bid.”

Media inquiries should be directed to Andi Phillips, Media Director, andi@roarmedia.com, (305) 403-2080, Ext. 128.

dv791015When 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 solicitation terms require that a bidder possess two years of comparable experience and the bidder relies on a parent or affiliate company to satisfy the requirement? Depending upon the specific terms of the solicitation, the bid may be non-responsive and rejected.

That is exactly what happened in one case. In reviewing an intended award by the Florida Department of Transportation, the Administrative Law Judge for the Division of Administrative Hearings concluded that an ITB contained a requirement that the bidder set forth its experience under penalty of being determined non-responsive if the bidder failed to do so.  The low bidder stated that it and its predecessor had been in business for more that two years.  The Administrative Law Judge concluded that, on its face, this statement was not responsive, and entered an order finding that an award to the low bidder would therefore be arbitrary and capricious. (See, Statewide Process Service of Florida, Inc. v. Department of Transportation, Fla. Div.Admin.Hrgs, Case No. 95-5035BID).

So even though principals of the bidder may have the requisite experience by and through another entity, if the entity that actually submits the bid does not directly possess the experience, the bid may be rejected. If the solicitation documents are unclear as to whether affiliated entity experience may be considered, there may be a process to seek clarification. If the agency agrees that clarification is needed, it may issue an addendum. Putting in the time to review the terms and conditions of the solicitation and bidding through an appropriately qualified entity may be the difference between an award and loss of a business opportunity.

468951949If 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 that should be asked prior to submitting a proposal to provide the public agency with services.  On the one hand, service providers routinely seek to competitively price their proposals in an effort to gain contract awards.  On the other hand, the question that must be asked is whether that pricing structure will be sustainable over the duration of the contract, and considering the contractual terms.

If there are questions, the agency may have a procedure to seek clarification, and get answers by way of addenda.  You may also want to consider consulting with legal counsel if interpretation of the contract terms are an issue.

79072825 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 modifying or amending any contract, the notice of protest shall be filed in writing within 72 hours after the posting of the solicitation. The formal written protest shall be filed within 10 days after the date the notice of protest is filed. Failure to file a notice of protest or failure to file a formal written protest shall constitute a waiver of proceedings under this chapter. The formal written protest shall state with particularity the facts and law upon which the protest is based. Saturdays, Sundays, and state holidays shall be excluded in the computation of the 72-hour time periods provided by this paragraph.” [Emphasis added]

Note that the initial filing deadline for the notice of protest is within 72 hours and not days. Further, the failure properly file the notice shall constitute a waiver of the right to the protest procedure. Accordingly, best practice will be to note the exact time of day of the posting of the decision that you intend to protest and calculate 72 hours from that time.