Transcript PUBLIC CONTRACTS AND PROCUREMENT REGULATIONS

PUBLIC CONTRACTS AND
PROCUREMENT
REGULATIONS
OCTOBER 12, 2007
CHARLES R. BAILEY
WEST VIRGINIA FAIRNESS IN
COMPETITIVE BIDDING ACT
1. OWNER, DESIGNER, AND CONTRACTOR
2. TWO SEPARATE CONTRACTSBAGENCY-DESIGNER,
AND AGENCY-CONTRACTOR
3. SELECTION BASED ON LOWEST RESPONSIBLE
BID
4. BID SPELLS OUT IN GREAT DETAIL ENTIRE
PROJECT
ADVANTAGES
1. DESIGN IS FULLY DEVELOPED AND COMPLETED
BEFORE THE PRICING OF WORK
2. SHOULD RESULT IN LOWEST COST
3. SELECTION MADE ON BASIS OF PRICE ALONE, NO
POLITICS IN PROCESS
DISADVANTAGES
1. INEFFICIENT
2. CONTRACTOR IS EXCLUDED FROM THE DESIGN
PROCESS
3. CONSTRUCTION MAY BE DELAYED UNTIL ENTIRE
DESIGN OF THE PROJECT
4. PROCESS IS FORMAL, CUMBERSOME, AND BID
PROCESS IS EXPENSIVE
5. TIME-CONSUMING
6. INCREASED EXPOSURE TO LIABILITY OVER
PROBLEMS WITH DESIGN
7. QUALITY REVIEW OVERSIGHT INCREASED
LOWEST QUALIFIED
RESPONSIBLE BIDDER
1. READY, ABLE AND WILLING TO FURNISH LABOR
AND MATERIALS REQUIRED TO COMPLETE
CONTRACT
2. COMPLIANCE WITH ALL APPLICABLE LAWS
3. SUPPLIED VALID BOND
SOLICITATION OF BIDS
1.
EVERY CONSTRUCTION PROJECT EXCEEDING
$25,000 IN TOTAL COST
2.
ALL BIDS MUST INCLUDE VALID BID BOND
3.
DEBARRED VENDORS NOT PERMITTED TO BID
4.
CONSTRUCTION CONTRACT SHALL BE
AWARDED TO LOWEST QUALIFIED BID
5.
MAY REJECT ALL BIDS AND SOLICIT NEW BIDS
EXCEPTIONS
1.
WORK PERFORMED BY REGULAR FULLTIME EMPLOYEES
2.
STUDENTS ENROLLED IN VOCATIONAL
EDUCATION SCHOOLS
3.
EMERGENCY REPAIRS TO BUILDING
COMPONENTS AND SYSTEMS
4.
VOLUNTEERS PROVIDE NECESSARY LABOR
WITHOUT CHARGE TO, OR LIABILITY TO,
GOVERNMENTAL BODY
CHANGE ORDERS
ACHANGES IN THE WORK MAY BE ACCOMPLISHED AFTER
EXECUTION OF THIS PART 2 AGREEMENT, WITHOUT
INVALIDATING THIS PART 2 AGREEMENT, BY CHANGE
ORDER, CONSTRUCTION CHANGE DIRECTIVE, OR ORDER
FOR A MINOR CHANGE IN THE WORK SUBJECT TO THE
LIMITATIONS STATED IN THE CONTRACT DOCUMENTS@
**MINOR CHANGES IN THE WORK NORMALLY DEFINED AS
CHANGES THAT DO NOT REQUIRE MATERIAL CHANGE IN
CONTRACT SUM OR CONTRACT TIME
SOLICITATION OF BIDS
1.
DESIGNATE TIME AND PLACE
2.
READ BIDS ALOUD ON DESIGNATED
DAY
3.
NO BID MAY BE ACCEPTED AFTER
TIME ADVERTISED TO TAKE BIDS
4.
MAY NOT ACCEPT BIDS THAT DO NOT
CONTAIN A VALID BID
REQUIREMENTS FOR BID
1.
PUBLIC ENTITY MAY NOT WAIVE REQUIREMENTS
STATED IN ADVERTISEMENT FOR BID
2.
MAY ONLY REJECT BID AFTER OPENING IF:
i.
ii.
ERROR WAS MADE;
ERROR MATERIALLY AFFECTED THE BID;
iii.
REJECTION OF BID WOULD
NOT CAUSE HARDSHIP;
iv.
ENFORCEMENT OF BID IN
ERROR WOULD BE UNCONSCIONABLE
3. CONTRACTOR WITHDRAWS BID
PUBLIC BIDDING REQUIRED
1. WHO INITIATED THE CONSTRUCTION PROJECT
2. EXTENT OF CONTROL RETAINED BY STATE
3. EXTENT USED FOR PUBLIC PURPOSE
4. PUBLIC FUNDS USED
POTENTIAL LEGAL ISSUES
1.
PROBLEMSBCONSTRUCTION, DESIGN OR
BOTH
2.
TYPICALLY CONTRACTOR INSISTS
PROBLEMS WITH DESIGN, AND DESIGNER
INSISTS THAT PROBLEMS WERE
CONSTRUCTION DEFICIENCY
PROJECT MANAGEMENT
1.
ARCHITECT OR DESIGN PROFESSIONAL AS ONSITE
REPRESENTATIVE
2.
ARCHITECT OR DESIGN PROFESSIONAL STILL OWES A DUTY TO
GENERAL CONTRACTOR
3.
WV COURT HELD THAT CONTRACTOR MAY RECOVER ECONOMIC
DAMAGES AGAINST DESIGN PROFESSIONAL ON BASIS OF
PROFESSIONAL NEGLIGENCE DESPITE LACK OF PRIVITY OF
CONTRACT. EASTERN STEEL CONSTRUCTORS, INC. V. CITY OF
SALEM, 549 S.E.2D 266 (2001).
4.
DESIGN PROFESSIONAL ALSO IMPLIEDLY WARRANTS THAT HE
HAS PERFORMED HIS WORK WITH CARE AND DILIGENCE
(PREPARED WITH THE ORDINARY SKILL, CARE, AND DILIGENCE
OF MEMBERS OF HIS OR HER PROFESSION
RESPONSIVE BIDDER
1. LOWEST QUALIFIED RESPONSIVE BIDDER
2. STATE AGENCY VESTED WITH BROAD
DISCRETION IN AWARDING PUBLIC CONTRACTS
3. UNSUCCESSFUL BIDDER HAS STANDING TO
CHALLENGE THE AGENCY=S DECISION
SUNSHINE REQUIREMENTS
1. OPEN RECORD LAWSBALL PERSONS ARE
ENTITLED TO FULL AND COMPLETE
INFORMATION REGARDING AFFAIRS OF
GOVERNMENT
2. FOIABEVERY PERSON HAS A RIGHT TO INSPECT
OR COPY ANY PUBLIC RECORD
3. BURDEN IS ON AGENCY TO SHOW THAT
REQUESTED MATERIALS FALL WITHIN FOIA
EXEMPTION
AGENCY RECEIVES FOIA REQUEST
AGENCY MUST:
1.
FURNISH COPIES OF REQUESTED INFORMATION
2.
ADVISE THE PERSON MAKING THE REQUEST OF THE TIME
AND PLACE TO INSPECT OR COPY MATERIALS
3.
DENY THE REQUEST
4.
(5 DAYS FOR AGENCY TO DO THE FOLLOWING)
5.
SUNSHINE LAW REQUIRES MEETINGS TO BE OPEN TO THE
PUBLIC
DESIGN BUILD PROCUREMENT ACT
1.
SINGLE CONTRACT FOR DESIGN
2.
NOT PERMITTED FOR HIGHWAY, WATER OR SEWER
PROJECTS
3.
CONTRACT B/W AGENCY AND DESIGN-BUILDER TO
FURNISH ARCHITECTURE, ENGINEERING AND
RELATED SERVICES
4.
CONTRACT MAY BE CONDITIONED UPON
SUBSEQUENT REFINEMENTS AND PERMIT AGENCY
TO M AKE CHANGES IN THE SCOPE OF PROJECT
WITHOUT INVALIDATING CONTRACT
IMPORTANT DEFINITIONS
1.
QUALIFIED-DESIGN BUILDERBONE OF THREE TO FIVE
DESIGN BUILDERS
2.
SELECTED BY THE AGENCY
3.
RESPONSIVE PROPOSALBPROPOSAL THAT SCORES
MINIMUM OF SEVENTY POINTS OF A POSSIBLE ONE
HUNDRED ON QUALITATIVE EVALUATION
4.
TECHNICAL REVIEW COMMITTEEBINDIVIDUALS WITH
EXPERTISE TO REVIEW, EVALUATE, AND SCORE
INVITATION FOR QUALIFICATIONS
1. A DESCRIPTIVE NARRATIVE OF THE TYPE, SCOPE
AND SIZE OF PROJECT
2. EVALUATION CRITERIA FOR SELECTING DESIGNBUILDERS
3. A REQUEST FOR DESCRIPTIVE INFORMATION
FROM DESIGN-BUILDER
4. FEWER THAN THREE DESIGN-BUILDERS ARE
DEEMED TO BE QUALIFIED, REQUIRED TO GET
PERMISSION FROM DESIGN BUILD BOARD
INVITATION FOR PROPOSALS
1.
SCHEDULE FOR PLANNED COMMENCEMENT AND
COMPLETION
OF DESIGN-BUILD CONTRACT
2.
BUDGET LIMITS
3.
DESCRIPTION OF DRAWINGS, SPECIFICATIONS, OR OTHER
INFORMATION TO BE SUBMITTED WITH THE PROPOSAL
4.
REQUIREMENTS FOR PERFORMANCE BONDS
5.
AGENCY SHALL PROVIDE AS APPLICABLE, ADDITIONAL
INFORMATION TO THE DESIGN-BUILDERBSURVEYS, SOILS
REPORTS, DRAWINGS, ETC
PROPOSALS
1.
PROPOSALS SUBMITTED IN TWO SEPARATE, CLEARLY
IDENTIFIED
2.
SEALED PACKAGES (DISQUALIFIED FOR FAILURE TO
COMPLY)
3.
TECHNICAL SUBMISSIONS
4.
COST SUBMISSION
5.
BID BOND FURNISHED NOT TO EXCEED 5% OF MAXIMUM
COST
6.
IDENTIFY EACH FIRM TO WHOM DESIGN BUILDER
PROPOSES TO SUBLET
7.
SPECIFY THE PROPOSED COST
WRITTEN AND SIGNED
ALL PUBLIC CONTRACTS NEED TO BE IN WRITING
AND SPELL OUT THE TERMS AGREED TO BY THE
PARTIES
PROBLEMS USUALLY OCCUR WITH CHANGE
ORDERS
CHANGE ORDERS
CHANGE ORDER IS A WRITTEN INSTRUMENT
STATING:
1.
A CHANGE IN THE WORK
2.
AMOUNT OF THE ADJUSTMENT TO THE
SUM
3.
EXTENT OF THE ADJUSTMENT TO THE
CONTRACT TIME
INDEMNIFICATION AND INSURANCE
1.
2.
3.
INDEMNITY IS A CONTRACTUAL RIGHT TO RECOVER COSTS
AND DAMAGES
COURT FOCUSES ON INTENT WHEN REVIEWING CONTRACT OF
INDEMNITY
MUST SHOW THE FOLLOWING THREE PART TEST:
i. CLAIM IS COVERED BY INDEMNITY
AGREEMENT
ii. EXPOSES TO LIABILITY WHICH COULD
REASONABLY BY EXPECTED TO LEAD TO AN ADVERSE
JUDGMENT
iii. AMOUNT OF SETTLEMENT WAS
REASONABLE
INDEMNIFICATION CONTINUED
1.
W.V.A CODE SECTION 55-8-14 STATES THAT INDEMNIFICATION IS
NOT ALLOWED WHEN INDEMNITEE IS SOLELY AT FAULT
2.
WV SUPREME COURT HAS HELD THAT THIS PROVISION IS ONLY
APPLICABLE WHEN JURY FINDS 100% NEGLIGENT
3.
SUFFICIENT TO PROVE THAT INDEMNITEE WAS POTENTIALLY
LIABLE TO THE PLAINTIFF
4.
KEY IS TO NOTIFY THE PARTY HAVING A DUTY TO INDEMNIFY
5.
STATE OR AGENCY IS SUED, THEN THIRD PARTY INDEMNITOR
UPON REASONABLE NOTICE MUST EITHER DEFEND OR
INTERVENE
6.
FAILURE TO TAKE EITHER STEP FORECLOSES THE INDEMNITOR
FROM CONTESTING THE VALIDITY OF ANY JUDGMENT
PAYMENT AND PERFORMANCE BONDS
1.
STATE LAW REQUIRES THE CONTRACTOR TO FURNISH
SUFFICIENT PERFORMANCE AND PAYMENT BONDS
2.
PERFORMANCE BOND PROTECTS THE STATE
3.
PAYMENT BOND PROTECTS THE SUBCONTRACTORS AND
SUPPLIERS
4.
W.V.A CODE SECTION 38-2-39 REQUIRES THAT THE
CONTRACTOR SHALL CAUSE TO BE EXECUTED A BOND
EQUAL TO A GOOD, VALID, SOLVENT AND SUFFICIENT
BOND IN A PENAL SUM EQUAL AT LEAST TO THE
REASONABLE COST OF THE MATERIALS, MACHINERY,
EQUIPMENT AND LABOR REQUIRED FOR THE
COMPLETION OF SUCH CONTRACT
CONDITIONS FOR CONTRACT
1.
AGENCY DETERMINES THAT IT IS IN THE
BEST INTEREST OF THE PUBLIC
2.
DESIGN-BUILD BOARD DETERMINES THAT
THE PUBLIC PROJECT IS APPROPRIATE