Becker & Poliakoff Shareholder Bill Cea discusses the basics of acquiring government contacts in Florida through the public bidding process.
Becker & Poliakoff Shareholder Bill Cea discusses the basics of acquiring government contacts in Florida through the public bidding process.
You have a construction contract for work to be done on a project in Florida. Although hoping that all goes well, it’s your belief that if any legal issues arise, Florida law would apply. That may be correct, since Florida law would generally apply to issues concerning the performance of such a contract. However, that may not be correct.
What if your construction contract has a choice of law provision that specifies the law of a state other than Florida applies? That will likely require a further analysis regarding issues that could include but are not necessarily limited to what legal, equitable, contractual, and tort-type matters are at issue, are those matters encompassed within the particular choice of law provision, are there procedural and substantive issues to be considered, will the enforcement of the choice of law provision violate Florida public policy, what do Florida’s choice of law rules indicate will apply, what does the other state’s law provide, and how does that law compare to or contrast with Florida law.
What if your construction contract does not have a choice of law provision but refers to or incorporates another document that does have such a provision? In this context additional issues may arise as to what terms and provisions are and are not actually incorporated through these other documents and how that may or may not bind the parties to the law of any particular forum.
Additionally, with Florida’s present judicial limitation of the economic loss rule to product liability matters, Florida litigants may also find themselves litigating non-contractual claims, despite the existence of a contract between the parties. In such situations, a legal and factual analysis of the particular claims asserted should also include consideration of what jurisdiction’s law applies, even in the absence of a contractual choice of law provision.
So, when analyzing your construction contract, be mindful of the foregoing as some of the factors to consider in determining what law applies.
MORRISTOWN, NJ, September 3, 2014 — Becker & Poliakoff has expanded its construction litigation practice in New Jersey with the addition of attorney Matthew Meyers to its Morristown office.
Mr. Meyers specializes in commercial litigation, with an emphasis on complex construction defects and real estate disputes. In such cases, he has recovered nearly $50 million in claims on behalf of New Jersey condominium associations in the last five years, including the successful settlement of a contentious waterfront controversy in Northern New Jersey.
Mr. Meyers has been recognized numerous times by Thompson Reuters’ SuperLawyers, which lists lawyers who have achieved a high degree of professional achievement. He was honored in the 2012, 2013 and 2014 editions with “Top Lawyers in New Jersey” in the area of construction litigation.
He also frequently lectures on construction defect litigation issues to various organizations, including the New Jersey Institute for Continuing Legal Education, the Associations of Owners and Developers, the National Business Institute, and the Community Associations Institute – New Jersey Chapter.
“This is an exciting move for me,” said Mr. Meyers. “I was attracted to Becker by the firm’s depth of construction litigation talent and the additional resources available for these claims. My new firm will not only enhance my practice but will elevate the level of services I provide to clients, which has always been my top priority. “
“Matthew brings a wealth of talent and experience to our expanding Community Association practice in New Jersey,” stated J. David Ramsey, director of Becker & Poliakoff’s New Jersey Community Association practice. “He is a proven talent with a track record of successfully representing claimants confronting potentially ruinous construction claims, a major issue for many of our community associations. We now have added resources to further develop this practice.”
Becker & Poliakoff already boasts one of the nation’s most respected construction litigation teams, headed by Steven B. Lesser, who is also the Chair of the ABA Forum on the Construction Industry. Mr. Lesser’s group has a reputation for excellence in residential and commercial construction matters, with a concentration on the representation of condominium associations in construction defect claims.
Mr. Lesser commented, “Matthew’s background and experience measures up to the rigorous standards we have set for our construction attorneys, and we intend to support the prosecution of these construction claims to the fullest extent possible. Matthew’s addition to the team is a part of our plan to expand the construction practice regionally while maintaining the high level of expertise and service our clients have enjoyed for over 40 years.”
Mr. Meyers is a graduate of Rutgers University where he received his B.A. in Economics. He received his J.D. from the New York School of Law and is admitted to practice before and is a member of the New Jersey Bar.
About Becker & Poliakoff
Becker & Poliakoff is a diverse commercial law firm with more than 170 attorneys, lobbyists and other professionals in 20 domestic and international offices. The firm has eight primary areas of practice: Real Estate, Construction Law and Litigation, Community Association, Customs and International Trade, Business Litigation, Corporate & Securities, Government Law and Lobbying, and the Intellectual Property & Emerging Technologies practice. For more about the firm, visit: www.bplegal.com or www.bplegal.com/blogs.aspx to access forums on the latest ideas and opinions on legal matters hosted by Becker & Poliakoff attorneys.
Concrete generally consists of three components: (a) water, (b) an aggregate material such as sand, gravel, or stone, and (c) cement. In condominiums, concrete is often used in the formation of the shell of the building, with further support and strength being provided by reinforcing steel located within a condominium’s concrete slabs, balconies, and columns. Over time, exposure to atmospheric conditions, including but not limited to, items such as chloride ions or carbon dioxide (through a process known as carbonation), may cause or contribute to the corrosion of reinforcing steel located within concrete. Other factors may also contribute to this corrosion process. When this reinforcing steel corrodes rust can form, with a resultant volume that is greater than the volume of the original reinforcing steel. Rust can also adversely affect the bonding between the reinforcing steel and the surrounding concrete, with the potential for cracking, spalling, rupturing, and delamination of the concrete itself.
If potential concrete-related problems are observed, it would be helpful to engage the necessary technical and construction personnel to evaluate and remediate such conditions. A licensed competent structural engineer with experience in concrete repair work can ideally assist in several ways; including but not limited to, (1) identifying the cause(s) of the problem, (2) determining the projected scope and extent of remedial work, (3) preparing the necessary plans, specifications, and project manual(s), (4) assisting in soliciting and evaluating bids / proposals from contractors for such repair work, and (5) supervising and/or overseeing the contractor that is engaged to perform such remedial work. The engineer’s responsibilities should be established beforehand, typically in and as part of the terms of a contract between the engineer and the condominium.
Hiring a licensed competent concrete restoration contractor and establishing the contract that is to be used with this contractor for such concrete repair work is also important. Among the types of contracts that have been used for concrete repair work are (a) lump sum or stipulated sum contracts, (b) guaranteed maximum price contracts, and (c) unit price contracts. With respect to “unit price” contracts, the actual contract price is generally based upon the amount of linear, square, or cubic feet of work done. Notwithstanding an engineer’s (prior) estimate, once the damaged concrete is chipped away and one can see what specifically needs to be done, an entity, such as a condominium association that has entered into a unit price contract may, at times, find itself incurring costs that exceed the estimated cost of such work. With respect to “lump sum” or “stipulated sum” contracts the contract price is typically stated in the contract. Nevertheless consideration should be given as to what is and what is not included in this stipulated contract price, and if there are any other provisions (caveats / exceptions) that could nonetheless change this price. A “guaranteed maximum price” contract is, as the name suggests, one in which the price will typically not exceed a certain amount (again presuming no caveats or exceptions apply). Irrespective of the type of contract that is used, the contracting parties should evaluate all of the terms and conditions of such contract, and be aware of how it affects their respective rights, obligations, and responsibilities.
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 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.
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.
Solar roof panels and low-flow toilets are so last season. Now there’s more graywater recycling, net-zero or net-positive energy systems, ground source heat pump systems, and variable-refrigerant flow heating and cooling systems. These features are featured in the American Institute of Architects’ (AIA) Committee on the Environment’s annual Top Ten Awards.
The awards celebrate projects that are innovative and integrate built and natural systems and enhance both the design quality and environmental performance of the built environment. This year’s winners range from renovated historic buildings to educational facilities and even includes a very cool “sustainability treehouse” in West Virginia (here’s the photo).
Check out the awardees at http://www.aiatopten.org/.
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 persons who may speak on behalf of the same group.
As bidders are also members of the public, if the need arises to speak for or against a contract award, the new law provides another avenue to voice your concerns before a final decision is made. Prior to stepping up to the microphone, however, you should confirm with the agency’s clerk as to whether there are any rules or procedures that have been adopted. For example, there may be a form that you will need to fill out prior to speaking.
For those of us who live or work in a condominium, it is easy to lose sight of all of the infrastructure that operates behind the scenes to make a condominium a home. When that infrastructure fails, it can be inconvenient, or it can easily be disastrous in the case of a water leak. While the damage from a water leak can be immense, there are ways to avoid or at least reduce the impact from them, if you are proactive before and after they occur, and know your rights and responsibilities.
Taking steps like establishing inspection, maintenance and replacement schedules, and installing water leak detection systems, air conditioner pan alarms and remote sensors wired to master valve shut-offs can prevent problems from becoming a disaster. In the event of a water leak, condominium associations should take advantage of their right to access units to protect common elements and other units, and prevent mold from forming. Both the association and all affected unit owners should notify their respective insurance companies immediately, in writing, so their carriers’ adjusters can inspect the damage and advance cleanup, dry-out and repair costs.
While there might be a dispute over which insurance company should pay for what damage, as long as the required maintenance and replacements were performed and the damage was not the result of intentional conduct or negligence, some insurance coverage should apply to defray the financial impact of the leak. Alternatively, taking the appropriate steps before and after a leak will enable the impacted parties to hold accountable those entities truly responsible for the leak, like contractors, suppliers and service providers.
The foregoing issues and others will be addressed during a continuing education course presented by Becker & Poliakoff, P.A. attorneys Lisa Magill and Ryan Carpenter on April 24, 2014 from 9:00am to 11:00am at 1 East Broward Boulevard in Fort Lauderdale, Florida (CAM credit available). If you would like to attend, please register online by clicking here: http://callbp.com/event_registration.php?event_id=321.
Construction lawyers throughout the country have long preached the importance of proper construction documentation to owners and developers alike. Comprehensive documentation of a project is essential to protect owners; especially in the quick-build environment we are experiencing now.
Fortunately, there are several companies providing powerful tools that are invaluable to the mitigation of claims and overall protection of the owner and/or developer. One example is Multivista, a leader in photographic construction documentation. Multivista offers state-of-the-art construction photography and video documentation. Their products include interactive visual as-built documentation, construction webcams, and inspection-grade photos of the project.
Other core competencies include “Facility Management Information,” which is the process of converting documentation manuals and warranty information into an indexed, integrated system that is accessible via computer. Put more simply, imagine if a building manager could scan building components such as doors and windows to immediately pull up installation and warranty information. The result is a fully integrated “virtual building” that allows workers to access a visual model of the facility and all available facility information.
This level of project documentation is supportive during construction disputes and assists the attorneys and experts reach a speedy resolution. The technologies, although costly, marry construction and information in a time when some owners are even mounting webcams on top of hard hats to tell if a worker is lying down or taking a nap. They present a more practical approach to necessary construction documentation and also include real-time components. Owners using these tools are able log into an online interface remotely and monitor actual job site conditions anytime, anywhere. This is priceless.