Wednesday, August 27, 2014

Advice to Public Agencies from a Business Perspective

I recently received an email from an individual who spent 35 years in business responding to government agency (city, county, state, and federal) Invitations to Bid (ITB).  The following is a summary, in my words, of this individual's advice to public agencies.

Be proactive in soliciting firms:  In order to obtain the most competitive prices, it is important for public agencies to be proactive in soliciting as many firms as possible to respond to the solicitation.  It's not enough to just publish the solicitation on a website or in a newspaper and hope that qualified firms will find the ITB and respond.  Public agencies need to research and understand the market and notify applicable firms of the opportunity.  This will result in more competition and therefore lower prices.

Understand the scope of services sought:  As technology changes, it is important for government agencies to keep up to date on these changes as it impacts the scope of work for an ITB.  Just because a public agency used a particular scope of work years ago doesn't necessarily means that it is still an accurate reflection of how the scope should be described today.  If the solicitation includes a bid form with specific line item bids, is it clear what work is included in each line item?  Meeting with firms in the industry prior to issuing the solicitation can help public agencies understand changes in the industry and shape the scope of work and bid form in a manner that will make it attractive and easy for businesses to respond to the ITB.  Many solicitations end up being embroiled in protests or are cancelled because bidders and proposers made different assumptions about what was needed due to a lack of clarity in the solicitation document.

Describe the basis of determining the low bidder:  If an ITB includes multiple line items for unit prices, the public agency should include estimated quantities so it can determine which firm is the low bidder.  Without estimated quantities and just unit prices, it is very difficult to determine what firm has the overall lowest price and should be awarded the project. 

Include accurate estimated quantities:  Public agencies should evaluate carefully whether the estimated quantities included on a bid form are a reasonable estimate based on historical data and projected needs.  Some public agencies end up using the same estimated quantities from year to year and decade to decade even though the actual quantities used have changed dramatically over time.  Unreasonably inaccurate estimated quantities can also result in bidders with knowledge of the agency's actual needs submitting unbalanced bids that may result in higher prices to the public agency.  For unit price contracts, public agencies should establish an internal process to begin to systematically collect actual quantities (or require the selected firm to help with such reporting) so that for future solicitations, more accurate estimated quantities can be used.

Be transparent about the process:  The bidding and award process for public agencies should be transparent and bidders should have easy access to bid tabulations and copies of bids submitted, without requiring that businesses submit elaborate requests for what is a matter of public record.
Mike Purdy's Public Contracting Blog
© 2014 by Michael E. Purdy Associates, LLC

Tuesday, August 26, 2014

Free Webinar: Social Media for Government

Social Media for Government: Harnessing the Power While Managing the Risks

When:  September  17, 2014 (11:00 am to 12:00 pm, Pacific Daylight Time)

Cost:  Free

Where:  Your computer

Description:  The facts are clear: an ever-growing segment of the population is getting the majority of their news and information through social channels.  While some local governments have at least started social accounts, most aren't truly taking advantage of the power of this new medium to engage and connect with their communities.  This webinar will:
  • Provide strategies for using social media
  • Social media's relationship with various laws including public records and open public meetings
  • Strengths and weaknesses of various platforms
  • Questions and answers
  • Bronlea Mishler, Deputy Director of Communications for Snohomish County (WA)
  • Jim Doherty, Legal Consultant for MRSC
Sponsored by:  MRSC (Municipal Research and Services Center)

More information and registration:  Click here.
Mike Purdy's Public Contracting Blog © 2014 by Michael E. Purdy Associates, LLC

Monday, August 25, 2014

What is Your Bid Submittal Deadline?

How you describe your bid submittal deadline may make a difference between whether you get a bid protest or not.  Or whether you receive non-responsive or responsive bids.  If you're a bidder, you want clarity so that you know what the expectations are for when the bid is timely.

Precise language to avoid ambiguity:  Because submission of bids is often a last minute (or second) affair, it's important that the language in your bid documents describing the deadline be precise so there is no room for misinterpretation as to whether a bid has been submitted on time or is late.

Problematic deadline language:  In reviewing bid documents for various public agencies, I've often seen the following language, all of which is ambiguous as to the real deadline:
  • Bids must be submitted prior to 2:00 pm
  • Bids must be submitted up to 2:00 pm
  • Bids must be submitted at 2:00 pm
  • Bids must be submitted at 2:00 pm exactly
The problem with each of these examples is that they are not precise when a bid is on time versus late.  For example, in the first and second examples, is a bid submitted at 2:00 pm timely or must it be submitted "prior to" or "up to" 2:00 pm?  The last two examples imply that bids may only be submitted "at" 2:00 pm, but not before.

Preferred deadline language:  I think the best practice for bid submission language is as follows:
  • Bids must be submitted no later than 2:00 pm
This language is clear that if a bid is submitted after or later than 2:00 pm it will be deemed non-responsive.

Review your bid documents:  Take a look at your bid documents for how they describe the time of the deadline.  Of course, your language must also address the date and the place where bids must be submitted.

Mike Purdy's Public Contracting Blog
© 2014 by Michael E. Purdy Associates, LLC

Wednesday, August 20, 2014

When Do Emergencies Cease to be Emergencies?

In public procurement, most states and local agencies have provisions that permit them to award a contract for goods, services, or construction in the event of an emergency.

Definition of an emergency: The definition of what constitutes an emergency and the subsequent waiving of competitive bidding requirements varies for different agencies, depending on state and local laws and policies.  Generally, however, an emergency occurs when there are unforeseen circumstances beyond the control of the agency that will likely result in any of the following if immediate action is not taken:
  • Material loss or damage to property
  • Bodily injury or loss of life
  • A real or immediate threat to the proper performance of essential functions.
How long do emergencies last?  Waiving competitive bidding requirements due to an emergency is an exception to the normal requirements.  Thus, emergency contracts are usually only valid to address the immediate emergency situation.  If there is subsequent or follow-up work that is necessary, it would generally not be deemed an emergency if the public agency would have sufficient time in which to competitively bid the work.  This, however, is a case-by-case decision that requires exercising subjective and wise judgment.

Washington state:  In Washington state, emergencies are defined in RCW 39.04.280, although some specific types of agencies also have their own definitions for emergencies.
Mike Purdy's Public Contracting Blog
© 2014 by Michael E. Purdy Associates, LLC

Tuesday, August 19, 2014

Job Opening: Buyer

King County (WA)
  • Position: Buyer
  • Location:  Seattle, Washington
  • Closing Date:  September 2, 2014 at 4:30 pm, Pacific Time
  • Salary: $60,902 to $77,188 Annually
  • Job Summary:  This position is responsible for procuring supplies, materials, equipment, and services in order to support operational needs throughout King County.  The successful candidate must be highly analytical, and have the passion and drive to secure goods and services by efficient and cost effective methods in accordance with procurement laws, regulations, policies and procedures in support of King County's mission and objectives.  
  • For More Information and to Apply:  Click here.
Mike Purdy's Public Contracting Blog
© 2014 by Michael E. Purdy Associates, LLC

Training in September: Washington Construction Law

21st Annual Washington Construction Law Seminar:  I've attended this seminar in previous years and always found it to be very helpful.  I will be attending again this year.

When:  September 18-19, 2014 (9:00 a.m. to 5:00 p.m.) 

Agenda and Speakers:
  • Federal Construction Law - New Developments (Bruce P. Babbitt)
  • Washington State Public Works Competitive Bidding and Bid Protests (Arnold R. Hedeen)
  • Key Clauses of Construction Contracts (Alan Bornstein)
  • Integrated Project Delivery (Scott R. Sleight)
  • Key State Tax Considerations for Construction Projects (George C. Mastrodonato)
  • Building Information Modeling (BIM) (Brendan J. Peters)
  • Construction Changes/Differing Site Conditions (John P. Ahlers)
  • What Happens When Someone in the Chain Goes Bankrupt? (Jerry N. Stehlik)
  • Discovery Issues in Construction Claims (Andrew L. Greene)
  • Washington Construction Law - New Developments (Paul R. Cressman, Jr.)
  • Claims Against Design Professionals (Stanton P. Beck)
  • Design Professional Considerations (Blaine J. Weber)
  • Ethical Considerations for Construction Lawyers (John A. Strait)
  • Insurance in the Construction Industry (Todd C. Hayes)
  • Lien and Bond Claims; Dealing with Sureties (Kerry C. Lawrence)
  • Construction Mediation (Henry C. Jameson)
  • $645 - Government employees
  • Other fees for different categories 
  • The sponsor of this training, The Seminar Group, will provide my blog readers with a $50 per person discount off of the regular tuition rate.  Call The Seminar Group to register and mention Mike Purdy and the discount code "SPP50." 
 Credits:  Approved for continuing education credits with:
  • Continuing Legal Education (CLE) credits for Washington, Oregon, Idaho, California, Alaska
  • Construction Risk & Insurance Specialists by IRMI
  • AIA (American Institute of Architects)
  • American Institute of Constructors
  • Construction Management Association of America
Sponsored by:  The Seminar Group

Information and registration:  Click here.
Mike Purdy's Public Contracting Blog
© 2014 by Michael E. Purdy Associates, LLC

Monday, August 18, 2014

Key Factors in Deciding on a Unit Price Book for Job Order Contracting

Job Order Contracting (JOC) has been gaining increasing popularity among public agencies as an efficient project delivery tool for public works construction projects.  In JOC, the contractor agrees to a fixed period, indefinite quantity delivery order contract which provides for the use of negotiated, definite work orders for public works, based on an established unit price book.

Types of unit price books:  There are a number of options available for what unit price book to use and there are companies who help guide public agencies in the establishment and management of Job Order Contracting.
  • Agency developed:  Some public agencies develop their own unit price book, often using prices based on historical usage data.
  • Off-the-shelf industry:  Other public agencies use an already established unit price good such as the estimating guide published by the company RSMeans.
  • Customized: Still other public agencies turn to specialist companies such as RSMeans and The Gordian Group to develop a specific unit price book tailored to the agency's needs and location. On July 21, 2014, The Gordian Group announced that it acquired RSMeans from Reed Construction Data.
Lisa Cooley
Evaluating unit price books:  Lisa Cooley, the Program Director for JOC and Custom Cost Engineering at Reed Construction Data, has written a very thoughtful, thorough, and accessible article entitled "The Best Unit Price Book for Your Job Order Contract" in which she explains some of the factors that should drive a decision on which unit price book to use for a Job Order Contracting program.  Ms. Cooley has also written some other helpful articles on the same website.

JOC in Washington state:  Not all public agencies are authorized to use JOC in Washington state. RCW 39.10.420 lists the agencies or agency types that may use JOC.  Other JOC related laws are found in RCW 39.10.430, RCW 39.10.440, RCW 39.10.450, and RCW 39.10.460.

Mike Purdy's Public Contracting Blog
© 2014 by Michael E. Purdy Associates, LLC