This is a widespread practice in many public sectors, and our schools suffer for it. I am proud to say that my district happens to be run by honorable people, whom I respect. A rarity I'm afraid.
Many people tell me to walk softly around this issue, but I would rather be ground to dust, than be perceived as a coward. So, I will share this data to with only after I've confirmed it to satisfaction.
The standard operating procedure of these scams are invented by, and perpetrated on, the public by a select group of roofing material manufacturers who would rather adopt a very aggressive sales model, than to compete fairly on the open market.
By "sales model", I mean "Proprietary Specifications". They work to eliminate any competition, and create great hardship for my colleagues in the roofing discipline. They also cause great harm to YOU, as taxpayers, as you end up paying exorbitant sums of money for absolutely no additional benefit.
I have NEVER seen this one time within the private sector, as that's a hard sell to someone who actually has to write the check. For government, that "Real Money", is actually only numbers in boxes, because it's not coming out of their pockets. In this way, the few are enriched, while the many suffer. Frankly, I've grown tired of it, and am emboldened by my colleagues across the United States, who ask me to help.
I've made a very difficult, very dangerous, and very time consuming commitment to stand up for them.
You must understand the only real purpose of any contractor is to educate their staff, keep them safe, and provide a good working environment. As a result, projects are secured, and workmen are able to earn a living, to nourish their families.
In the face of this monumental effort stands corruption, greed, and of course the money ALWAYS associated with it. Apparently, souls may be purchased, and sold rather easily.
Below, you will find a very informative article written by my friend, Mr. Trent Cotney, Esq. The first installment in this series so you can understand the premise of proper bidding procedure. The article is being presented in it's entirety, and as it appeared in the West Coast Roofing Contractors Association's most recent issue:
PUBLIC PROJECTS AND BID PROTESTS
Part I of II
A significant amount of roofing work in Florida involves work with state or
local government entities. These public entities use (or are supposed to use)
competitive bid procedures to procure the lowest bid for projects. If the bid
letting is not conducted in a competitive manner, then the bid letting may be
protested in accordance with published procedures. Generally, these procedures are governed by Florida Statutes and the Administrative Procedure Act (APA).
Chapter 120, Florida Statutes. This month’s article will focus on who may
commence a bid protest and under what circumstances. Next month’s article
will discuss the procedures involved with filing a bid protest.
Section 255.20, Florida Statutes, and Florida common law provide that
public contracts must be awarded under the rules of competitive bidding.
Section 255.20 generally applies to most public entities; however, there are
certain entities which are exempt from §255.20 and not every public entity is
subject to the bid protest procedures set forth in the APA.
By definition, in order for the bidding to be competitive, all bids must be
based on the same requirements and must be evaluated on the basis of the same
criteria. In other words, the bids must be capable of an “apples to apples”
comparison, and all of the criteria by which the bids will be judged must be
known to the bidders in advance.
Public competitive bidding must be done in a manner that is not arbitrary
or capricious, which can only be accomplished if the bids are compared
according to the same criteria set forth in the instructions to the bidders.
Moreover, because public monies are being spent, public competitive bidding
must be conducted in a manner to avoid even the appearance of collusion or
favoritism.
If a bid fails to comply with the instructions to bidders in some material
aspect, then the bid must be rejected as being non-responsive, because a nonresponsive bid cannot be compared “apples to apples” with bids that have
strictly followed the instructions to bidders.
If the contract is awarded to a bidder whose bid fails to comply with the instructions to bidders, then the award is made based on criteria other than the published criteria. In such a case, the award, by definition, is arbitrary or capricious because the letting authority has arbitrarily awarded the contract based on criteria that was not published and made known to all bidders. Awarding a public contract on the basis of criteria that was not made known to all bidders opens the door to favoritism and
collusion.
Case law holds that a minor deviation from the instructions to bidders can
be ignored, but only if the deviation is not material, i.e., the deviation did not
result in an unfair economic advantage. See C.H. Barco Contracting Co. v. State
of Florida, Department of Transportation, 483 So2.d 796 (Fla. 1st DCA 1986).
The test for measuring whether a deviation is sufficiently material to destroy the
competitive nature of the bid process is “whether the variation affects the
amount of the bid by giving the bidder an advantage or benefit not enjoyed by
the other bidders.” See Harry Pepper & Associates, Inc. v. City of Cape Coral,
352 So.2d 1190, 1193 (Fla. 2nd DCA 1977).
In Harry Pepper, the apparent low bidder, Gulf Contracting (“Gulf”), sought to modify its bid after the other bids had been opened in order to bring its bid into conformity with the instructions to bidders. Gulf had based its bid on less expensive pumps rather than the pumps specified in the instructions to bidders.
The court held that Gulf’s bid deviation was deemed material and non-waiveable because Gulf had the ability to examine the other opened bids and decide whether or not it wanted to modify its bid and incur the additional expense of supplying conforming pumps to obtain the contract, or stand on its less expensive non-conforming pumps and not receive the award.
Gulf had the opportunity to decide whether it wanted the contract after all of the other bids had been disclosed. Gulf’s actions gave it an unfair advantage in the bidding process, which was not enjoyed by the other bidders in the process.
Similarly, in E.M. Watkins & Co. v. Board of Regents, 414 So.2d 583
(Fla. 1st DCA 1982), the apparent low bidder on a project submitted a
required list of subcontractors a few hours after the deadline for bid
submittals.
The court deemed the bidder’s failure to timely submit the list to
be material and non-waiveable because the late submission facilitated
undesirable subcontractor bid shopping. The court came to this conclusion
even though there was no evidence that the bidder actually had received an
unfair advantage or benefit by submitting the subcontractor list after the bid
submittal deadline.
Generally, only bidders who could receive the award if their protest is
successful are allowed, i.e. have standing, to protest a bid. As such, courts
have held that potential bidders who fail to submit bids do not have standing
to contest the bid results. See Westinghouse Elec. Corp. v. Jacksonville
Transp. Auth., 491 So.2d 1238 (Fla. 1st DCA 1986).
A protestor must also demonstrate that it has a substantial interest in the outcome of the bid process, by showing that if the defects in the bid are remedied, then there is
a reasonable likelihood of the bidder winning the contract. See Preston
Carroll Co., Inc. v. Florida Keys Aqueduct Auth., 400 So.2d 524 (Fla. 3rd DCA
1981).
Author’s note: The information contained in this article is for general
educational information only. This information does not constitute legal advice, is
not intended to constitute legal advice, nor should it be relied upon as legal advice
for your specific factual pattern or situation.
Trenton Cotney, a shareholder attorney at Glenn Rasmussen Fogarty & Hooker, P.A., in
Tampa, Florida prepared this article. Trent is Florida Bar Certified in Construction Law, a
Florida Supreme Court Certified Circuit Mediator, Qualified Florida Court-Appointed
Arbitrator, General Counsel and a director of the Florida Roofing Sheet Metal and Air-
Conditioning Contractors Association (FRSA), a director of the West Coast Roofing
Contractors Association (WCRCA) and a member of Associated Builders and Contractors
(ABC). For more information, contact the author at 813-229-3333 or
tcotney@glennrasmussen.com.
I am deeply appreciative of Trent's unselfish work, and will highly recommend him to any roofing contractor as the very best within our discipline. If you are unsure of something, or need help, Trent is the guy. Period.
I thank each of you from the bottom of my heart for caring about what I have to say, and for taking time from your day to visit with me here. YOU are the only reason I am here, and I am deeply grateful to my many visitors from around God's beautiful earth.
We will return to less complex issues soon, but I must do my best to protect the public interest.
Never despair, reject negativity in all forms, and for goodness' sakes, keep looking "UP".
Respectfully,
Robert R. "Ron" Solomon
CCC1325620
