COMPLIANCE WITH PROCUREMENT VEHICLES AND PROTESTING THOSE WHO DON’T COMPLY

William J. Cea, Esq.Becker & Poliakoff, P.A.

Deborah Bovarnick Mastin, Esq.Law Office of Deborah Mastin, P.A.

Presented by:

PROCUREMENT VEHICLES

Public/Private Partnership Act, Florida Statutes, Section 287.05712: 

Provides substantive requirements for a “qualifying project”.

Authorizes responsible public entities to solicit proposals.

Supplements public agency authority. Public agencies must still follow applicable

procurement process (ex. RFP, ITN). Unsolicited proposals are treated

separately.

PROCUREMENT VEHICLES

Prepare and advertise in accordance with applicable law and local codes and policies.

Examples:

Florida Statutes, §255.0525, advertising requirements. Florida Statutes §255.20, local bids and contracts for public construction works.Florida Statutes, §287.055, Consultants’ Competitive Negotiation Act – expressly referenced in the P3 Act. Local ordinances and purchasing policies.

PROCUREMENT VEHICLES

Considerations from the public perspective:

What are the agency’s concerns?Advertisement of the solicitation. Receipt of proposals, replies, etc.Evaluation process.Compliance with public records and sunshine laws.Award decisions. Lobbying/ “Cone of Silence” Restrictions

PROCUREMENT VEHICLES

Application of Concepts to an Airport Capital Development Project

Federal Approvals: FAA, Corps of Engineers, Environmental.State and Regional: Environmental, Regional Land UseLocal: Zoning, Noise, Other Stakeholders?

PROCUREMENT VEHICLES

Project Tips:

You get what you pay for – Hire the most experienced staff and consultants you can.It takes a village – Involve the users in identifying effective improvements.’Measure twice, not once – Peer review plans.Join the 21st Century – Use available technology (Building information management, 4-D scheduling software…)Incorporate a dispute board internal to the PPP to avoid, mitigate and manage team disputes.

PROTESTS OF AGENCY ACTION

Types of protests:Specification challenge – Is one afforded?Intended award or rejection decisions.

PROTESTS OF AGENCY ACTION

What are the rules of engagement? 

Florida Statutes, Chapter 120 – The Administrative Procedure Act.

OR

Local codes and policies.

PROTESTS OF AGENCY ACTIONS

Traditional protest grounds: 

Lack of qualifications.Material irregularities. Improper price changes.Agency failure to adhere to advertised terms and conditions. Sunshine law violations.Contract does not resemble advertised scope.Case law standards.

PROTESTS OF AGENCY ACTION

Potential P3 protest considerations and grounds:

Does the project meet the definition of a “qualifying project”?Has the agency adopted any guidelines providing “reasonable criteria for choosing among competing proposals”?Has the agency made all of the findings required by the Act? Whether the agency complied with the CCNA.Whether the agency notified “affected local jurisdictions”.Does the comprehensive agreement provide all of the mandatory terms?

DISCUSSION AND Q&A