Don Gregory presented "Competitive Bidding" to the Ohio Prosecutor's Association on December 3, 2015. The presentation examined the requirements for competitive bidding including existing exceptions, bidding thresholds and non-collusive affidavits.

1. z
COMPETITIVE BIDDING
Donald W. Gregory
Ohio Prosecuting Attorneys Association
December 3, 2015

2. z
What is Happening in the Construction Industry?
+Less Work and Lower Margins
+Desperation for Contractors, Good Value for Owners
+Many More Bid Disputes

3. z
Why a Requirement for Competitive Bidding?
“To provide for open and honest competition in bidding for public contracts
and to save the public harmless, as well as bidders themselves, from any
kind of favoritism or fraud in its varied forms.”
Cedar Bay Constr., Inc. v. Fremont (1990), 50 Ohio St.3d 19, 21

4. z
What Exceptions Exist?
Professional Services
- architect, engineer, construction manager
Less than $50,000
Real and present danger declared by unanimous vote

5. z
New County Bidding Threshold
$50,000 9-28-12
R.C. §307.86

6. z
What Advertising is Required?
Once a week for not less than 2 weeks
(2nd can be avoided by posting online)

7. z
What Standard Applies to Counties?
“LOWEST AND BEST” BIDDER
(more subjective)
UNLESS “LOWEST, RESPONSIVE & RESPONSIBLE” BIDDER standard adopted
(more objective)

8. z
What Standard Applies to Municipalities?
“LOWEST AND BEST” BIDDER
UNLESS DIFFERENT STANDARD ADOPTED
UNDER HOME RULE

9. z
What Standard Applies to Most State Agencies?
“LOWEST, RESPONSIVE & RESPONSIBLE” BIDDER
(more objective)

10. z
What is “Responsive”?
Satisfies the bid instructions in all MATERIAL respects
and
Does not give the bidder a COMPETITIVE ADVANTAGE (i.e. price)
[Can WAIVE MINOR IRREGULARITIES]

11. z
What is “Responsible”?
Apply 9.312 factors including:
+ Experience
+ Management skills
+ Financial resources
+ Facilities
+ Conduct & performance on previous contracts
+ Ability to execute the contract properly

12. z
What is “Best”?
May depend on the criteria in the bid solicitation
but basically who can perform best for the price
[Can consider previous dealings, references, etc.]

13. z
Must Announce Bid Criteria
If base award on unannounced criteria, the award is subject to
attack.

14. z
NON-COLLUSIVE AFFIDAVITS
+Promise no agreement on price or terms with competitors
+Must be notarized

15. z
BID MAY BE WITHDRAWN IF MISTAKE
+Particularly if math or clerical mistake
WITHIN 48 HOURS OF BID OPENING

16. z
What discretion is vested with the Public
Owner?
Cannot act in arbitrary or unreasonable fashion.
Heavy burden to prove an abuse of discretion.
Courts reluctant to substitute their judgment.

17. z
LOW BIDDER ENTITLED TO BID PROTEST
MEETING
If Pubic Owner adopts “lowest, responsive and responsible” bidder standard
or promise this in bid criteria
IF REQUESTED by low bidder within 5 days of notice of rejection.

18. z
WHAT HAPPENS AT THE BID PROTEST
MEETING?
Opportunity to be heard
(the contractor’s opportunity to tell “his side of the story”)
But no guaranteed due process or constitutional rights such as cross-
examination

19. z
WHAT“DISCOVERY” IS PERMITTED?
Owners should expect a public records request and unilateral discovery in
advance of the bid protest meeting and suit

20. z
WHEN IS A REBID PERMITTED?
ANYTIME for any reason
REQUIRED IF COST (OF PROJECT) EXCEEDS PUBLISHED ESTIMATE
BY MORE THAN 10%

21. z
WHAT MUST A DISGRUNTLED BIDDER PROVE TO
OBTAIN AN INJUNCTION?
1. Strong likelihood of success on the merits;
2. Irreparable injuries (no adequate remedy at law);
3. Injunction would not cause substantial harm to others; and
4. Injunction would serve the public interest.

22. z
What Can A Public Owner Do if Injunction
Granted?
+Proceed Anyway and Take Chances
(Automatic Stay upon Appeal without Bond)
+Re-bid
+Go with Successful Challenger

23. z
Can a Contractor Recover Money Damages?
Generally, No.
No Lost Profits: Cementech
But Bid Preparation Costs May Be Recovered:
Meccon v. Akron U.

24. z
What about “Quality Contracting” Standards?
Have been enforced when the criteria is expressly referenced in the bid
instructions.
Subject to much gamesmanship on labor issues.
Courts reluctant to second-guess even if only minor deviations (i.e. minor
prevailing wage violations)….until Associated Builders.

25. z
Associated Builders: Huntington Ballpark
+ TPC was low bidder but rejected due to prevailing wage “violations”.
+ Injunctions denied and ballpark completed before case arrived in Supreme Court.
+ Supreme Court found abuse of discretion by Commissioners – substituted their
judgment?
+ TPC pursued bid preparation costs and fees.

26. z
CONSTRUCTION REFORM
+Eliminated the requirement of multiple prime bidders (MEP trades)
+Authorized General Contracting (with no MEP bidding to compare costs)
+Authorized Design-Build and Construction-Manager (at risk) on “Best Value”
basis

27. z
+ Lower Claim Cost
+ Single Source Responsibility
+ Less Coordination
+ Lower Bid Cost
+ More Cost Certainty Upfront
SINGLE PRIME v. MULTIPLE PRIME
Advantages

28. z
“Best Value” Selection
+ Determined through RFQ & RFP process
(like A/E selection)
+ Factors include:
- Competence
- Past Performance
- Financial Responsibility
- Workload
- Diversity
+Contracted on Open-book“cost-plus” basis
+Guaranteed Maximum Price (“GMP”)

29. z
Contract and Bond Forms
+ Can Use as Prime Contract:
- AIA
- ConsensusDOCS
- State DAS
- DBIA or EJDC (design – build)
- CMAA (construction – manager)
+ Subcontract must include:
- State form
+ 100% bonds are still required.

30. z
Questions?
Don Gregory
Kegler Brown Hill + Ritter