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Construction Contracting for the Owner: The Owner – Design Professional Relationship

April 6, 2011
Sanjay Kurian
Contracts

Once the owner has decided to undertake a project they generally retain the services of a design professional. The design professional is the engineer or architect hired by the owner to be used at various points throughout the project. General discussions between the owner and design professional should include the owner’s expectations of the projects, budgets, specific materials which need to be used or special considerations about the project. In both renovations and new construction these discussions would also include aesthetic considerations.  Although all these discussions may happen, the scope of the design professional’s relationship with the owner is that which is spelled out in the contract between the owner and design professionals. An owner in retaining the design professional needs to define his expectations of the design professional, and those expectations should be reduced to a written contract. As an owner, if you want the design professional to provide contract administration then you must ask...

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Construction Contracting for the Owner – Parties to a Construction Project

March 30, 2011
Sanjay Kurian
Contracts

  This is part 1 of our series on Construction Contracting for the owner.  Once you have decided to begin a construction project, whether this project is a reroof, concrete restoration, painting, repaving or anything else, there are generally 3 main groups involved. The first of these groups is the owner. The owner is the person or entity on whose behalf the work is being done. The types of owners range from an individual, development entity, hotel, condominium association, homeowner's association or a governmental agency.  Although the owner may be using a bank to finance the construction, the owner is the party generally responsible for ensuring payment to the other 2 groups. The second group is generally the design professionals. This group consists of the engineer or architect hired by the owner to prepare any drawings or specifications for the work to be done.  In larger projects, the owner may contract with an Architect who then hires various subconsultants (geotechnical engineer, structural...

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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. 

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Author

  • Mark J. Stempler

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

February 8, 2011
Mark J. Stempler
Procurement

One purpose of the government procurement process is for each bidder or proposer to be on equal terms to get fair consideration of their submissions. If the bidding process has been violated, however, a losing bidder or proposer may be able to protest the government agency’s decision.

Generally, the way to win a protest is to show that an agency did something that was clearly erroneous, contrary to competition, arbitrary, capricious or fraudulent.  An arbitrary decision is one that is not supported by facts or logic.  A decision is capricious if it is adopted without thought or reason, or is irrational.

Keep in mind that almost every agency’s rules and regulations are different. That means agencies generally have different protest procedures and deadlines. Usually the deadline to file a protest, or a Notice of Intent to protest if required, is very short. It can be a matter of hours or days. And the information required in the protest, and in submitting the protest, can be very specific.

As mentioned above, some agencies require a Notice of Intent to Protest an award before a formal protest is due. The Notice is usually a short statement from the protestor that it is going to file a protest. Sometimes, however, the complete protest grounds must be stated in the Notice. 

The formal protest is usually the more substantive letter, memorandum, or other written submission that discusses in detail all the protest grounds raised.     

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Author

  • Mark J. Stempler

    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.

    View all posts

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