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COMPLIANCE WITH PROCUREMENT VEHICLES AND PROTESTING THOSE WHO DON’T COMPLY. Presented by:. William J. Cea, Esq. Becker & Poliakoff, P.A. Deborah Bovarnick Mastin, Esq. Law Office of Deborah Mastin, P.A. PROCUREMENT VEHICLES.
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COMPLIANCE WITH PROCUREMENT VEHICLES AND PROTESTING THOSE WHO DON’T COMPLY Presented by: William J. Cea, Esq. Becker & Poliakoff, P.A. Deborah Bovarnick Mastin, Esq. Law Office of Deborah Mastin, P.A.
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 Use • Local: 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?
