PUBLIC CONTRACTS Project Acquisition and Project Delivery Systems

PUBLIC CONTRACTS PUBLIC CONTRACTS Project Acquisition and Project Acquisition and Project Delivery SystemsProject Delivery Systems

James E. Krause, AttorneyRegan Zebouni & Walker, PA Jacksonville, Florida

Direct Dial 904.861.0192 Email [email protected]

An Overview of Current Issues and Trends in Public Construction

Overview – To Bid or Not to BidOverview – To Bid or Not to Bid

OVERVIEWOVERVIEW Review and discuss public contract issues Review and discuss public contract issues Review construction acquisition systemsReview construction acquisition systems Review project delivery systemsReview project delivery systems

Review specific Public Contract issuesReview specific Public Contract issues Florida Public Contract lawFlorida Public Contract law JEA contract reviewJEA contract review

Part IPart IPUBLIC CONTRACT ISSUESPUBLIC CONTRACT ISSUES

Owner Expectations:Owner Expectations: Better - Faster - CheaperBetter - Faster - Cheaper Desire to work with fewer, but more reliable Desire to work with fewer, but more reliable

vendorsvendors No disputes -- no lawyers -- no lawsuitsNo disputes -- no lawyers -- no lawsuits Less risk/responsibility for OwnerLess risk/responsibility for Owner Engineer - Contractor has all riskEngineer - Contractor has all risk

OverviewOverview

Historical Perspective. Historical Perspective. Rise of Owner – Architect – Contractor Rise of Owner – Architect – Contractor

System.System. Increasing complexity in building systems Increasing complexity in building systems

requires complex management practices.requires complex management practices. Increased density involves governmental Increased density involves governmental

concern with health safety and welfare.concern with health safety and welfare. Increased overall complexity engages Increased overall complexity engages

legal system.legal system.

Overview - Private OwnersOverview - Private Owners

Private Owners typically have fewer Private Owners typically have fewer procurement restraints than Public procurement restraints than Public Owners.Owners.

The Golden Rule applies.The Golden Rule applies. The Owner is the ultimate authority.The Owner is the ultimate authority. Owners recognize the value of competition Owners recognize the value of competition

– more or less.– more or less. There is more possibility of bargaining for There is more possibility of bargaining for

favorable contract terms in private work.favorable contract terms in private work.

Overview - Public ContractsOverview - Public Contracts Public contracts derive from statutes, Public contracts derive from statutes,

regulations, ordinances, etc.regulations, ordinances, etc. It is common for Public sector contracts to It is common for Public sector contracts to

require competitive procurement. require competitive procurement. Contracting officers for Public Agencies Contracting officers for Public Agencies

have limited authority, and cannot commit have limited authority, and cannot commit the Agency or Government beyond their the Agency or Government beyond their authority. authority.

Public contracts are standardized – there is Public contracts are standardized – there is little room for bargaining.little room for bargaining.

Overview – Public OwnersOverview – Public Owners

Public Owners were not typically Public Owners were not typically allowed to use negotiated or sole allowed to use negotiated or sole source contract acquisition. source contract acquisition.

Public Owners were looking for a Public Owners were looking for a method to increase flexibility in their method to increase flexibility in their acquisition.acquisition.

““Best Value” procurement is the new Best Value” procurement is the new tool for Public Agencies.tool for Public Agencies.

Overview - OwnersOverview - Owners

Public (Government) contracts differ from Public (Government) contracts differ from nonpublic contracts in that private sector nonpublic contracts in that private sector contracts have few constraints, while contracts have few constraints, while public sector contracts involve extensive public sector contracts involve extensive regulations imposed by the government. regulations imposed by the government.

Public OwnersPublic Owners

AuthorityAuthority Contracting officials have limited authorityContracting officials have limited authority Contractor must be aware of that authority Contractor must be aware of that authority

or risk not getting paid for services and or risk not getting paid for services and materials provided outside that authoritymaterials provided outside that authority

Contractor is responsible for determining Contractor is responsible for determining contracting officers authority. contracting officers authority.

Sovereign ImmunitySovereign Immunity

Florida Public ContractsFlorida Public Contracts

Sources of InformationSources of Information

Florida StatutesFlorida Statutes Administrative Procedures ActAdministrative Procedures Act Department of Administrative Department of Administrative

HearingsHearings Agency/Department Policies and Agency/Department Policies and

Procedures ManualsProcedures Manuals

PUBLIC CONTRACTSPUBLIC CONTRACTSCompetition - FloridaCompetition - Florida

It is common to have statutory requirements that It is common to have statutory requirements that Public sector contracts require competitive bidding. Public sector contracts require competitive bidding.

According to the Florida Supreme Court, since the According to the Florida Supreme Court, since the government is a major employer and is political in government is a major employer and is political in nature, there is an assumption that there may be nature, there is an assumption that there may be impropriety and that the government cannot be impropriety and that the government cannot be trusted to meet and negotiate suitable terms without trusted to meet and negotiate suitable terms without at least the appearance of impropriety or special at least the appearance of impropriety or special favor. favor.

Competitive bidding serves the dual purpose of Competitive bidding serves the dual purpose of safeguarding against favoritism toward a particular safeguarding against favoritism toward a particular contractor and giving all a fair opportunity to contractor and giving all a fair opportunity to participate.participate.


Florida statutory law requires competitive Florida statutory law requires competitive bidding, and the Florida District Court of Appeals bidding, and the Florida District Court of Appeals has held that the government cannot split the has held that the government cannot split the contract into separate pieces to avoid the contract into separate pieces to avoid the statutory monetary minimum (with exceptions for statutory monetary minimum (with exceptions for specialty work or work that requires special skills specialty work or work that requires special skills not found in the general market). not found in the general market).

Further, Florida courts have held that a public Further, Florida courts have held that a public body may not draw specifications in its bid body may not draw specifications in its bid request that would permit only one bidder to request that would permit only one bidder to qualify for the project. qualify for the project.


255.05(1) – “award contracts based on the 255.05(1) – “award contracts based on the submission of sealed bids, proposals submission of sealed bids, proposals submitted in response to a request for submitted in response to a request for proposals, proposals in a response to a proposals, proposals in a response to a request for qualifications, or proposals request for qualifications, or proposals submitted for competitive negotiation.submitted for competitive negotiation.

255.20(19) – Local bid law requires 255.20(19) – Local bid law requires competition on all projects exceeding competition on all projects exceeding $200,000$200,000 NOTE: Competitive Bidding not requiredNOTE: Competitive Bidding not required


(1)(1) COMPETITION - Generally, no common law requirement COMPETITION - Generally, no common law requirement for competitive procurement in absence of constitution, statute, for competitive procurement in absence of constitution, statute, charter, ordinance, or rule requiring competitive procurement.charter, ordinance, or rule requiring competitive procurement.

(2)(2) Statutes, charters, and ordinances, however, generally Statutes, charters, and ordinances, however, generally require competitive procurement for construction contracts.require competitive procurement for construction contracts.

Florida Statutes 255.05(1) “County, municipality, district. Florida Statutes 255.05(1) “County, municipality, district. . .or . .or other political subdivisions of the state seeking to other political subdivisions of the state seeking to construct or construct or improve a public building, structure or other improve a public building, structure or other public construction public construction works must be competitively awarded to works must be competitively awarded to an appropriately an appropriately licensed contractor for each project that is licensed contractor for each project that is estimated in estimated in accordance with generally accepted accounting accordance with generally accepted accounting principles to principles to have total construction project costs of more than have total construction project costs of more than $200,000. . . $200,000. . . .[T]he term ‘competitively award’ means to award .[T]he term ‘competitively award’ means to award contracts contracts based on the submission of sealed bids, proposals based on the submission of sealed bids, proposals submitted in submitted in response to a request for proposals, proposals in response to a request for proposals, proposals in response to a response to a request for qualifications, or proposals submitted request for qualifications, or proposals submitted for for competitive negotiation.competitive negotiation.


COMPETITION can be:COMPETITION can be: Sealed Competitive Bid (IFB, ITB)Sealed Competitive Bid (IFB, ITB) Response to RFPResponse to RFP Response to RFQResponse to RFQ Response to Request for Competitive Response to Request for Competitive

Negotiation Negotiation

FS 255.20FS 255.20

PUBLIC CONTRACTSPUBLIC CONTRACTSFLORIDAFLORIDA

Public bodies procurement Public bodies procurement procedures fall under various procedures fall under various statutes, ordinances, rules, policies, statutes, ordinances, rules, policies, procedures, codes, etc. procedures, codes, etc.

A public procurement may fall under A public procurement may fall under more than one agency’s jurisdiction. more than one agency’s jurisdiction.

Carefully confirm what the rules are Carefully confirm what the rules are for your specific procurement.for your specific procurement.


Do not participate in preparing the invitation Do not participate in preparing the invitation to bid or the request for proposalsto bid or the request for proposals

If you are a would-be bidder or proposer, be If you are a would-be bidder or proposer, be careful about participating in developing careful about participating in developing specifications, invitation to bid, or request for specifications, invitation to bid, or request for proposalsproposals

Florida Statutes 287.057(10) “[a] person who. Florida Statutes 287.057(10) “[a] person who. . .participates in the drafting of a solicitation or who . .participates in the drafting of a solicitation or who develops a program for future implementation is develops a program for future implementation is not eligible to contract with the agency for any not eligible to contract with the agency for any other contracts dealing with that specific subject other contracts dealing with that specific subject matter, and any firm in which such person has any matter, and any firm in which such person has any interest is not eligible to receive such contract”interest is not eligible to receive such contract”


1.1. Review the invitation to bid or the request Review the invitation to bid or the request for proposal as soon as possible. Identify for proposal as soon as possible. Identify questions and concerns. questions and concerns.

2.2. Be fully responsiveBe fully responsive

3.3. Be timelyBe timely

4.4. Beware “lobbying” restrictions. Beware “lobbying” restrictions.

5.5. Be careful to avoid anti-competitive Be careful to avoid anti-competitive actions.actions.

6.6. Attend pre-bid conference; appropriately Attend pre-bid conference; appropriately ask clarifying questionsask clarifying questions


Preparing and submitting the bid or Preparing and submitting the bid or proposalproposal..

1. If the invitation to bid or request 1. If the invitation to bid or request for proposal contains unacceptable terms, for proposal contains unacceptable terms, the invitation or request often requires a the invitation or request often requires a protest within so many days of the protest within so many days of the invitation or request being releasedinvitation or request being released

Florida Statutes 120.57(3)(a) “[w]ith respect to a Florida Statutes 120.57(3)(a) “[w]ith respect to a protest of the terms, conditions, and specifications contained protest of the terms, conditions, and specifications contained in a solicitation, including the provisions governing the in a solicitation, including the provisions governing the methods for ranking bids, proposals, or replies, awarding methods for ranking bids, proposals, or replies, awarding contracts, reserving rights of further negotiation, or contracts, reserving rights of further negotiation, or modifying or amending any contract, the notice of protest modifying or amending any contract, the notice of protest shall be filed in writing within 72 hours after the posting of shall be filed in writing within 72 hours after the posting of the solicitation. . .Failure to file a notice of protest. . .shall the solicitation. . .Failure to file a notice of protest. . .shall constitute a waiver of proceedings under this chapter”constitute a waiver of proceedings under this chapter”



2. Responsive2. Responsive Answer all questions; respond to all requests.Answer all questions; respond to all requests. It is best to mirror the request from the agency.It is best to mirror the request from the agency.

3. Timely response essential3. Timely response essential Late responses will not be considered.Late responses will not be considered.



4.4. Beware “lobbying” restrictions. Beware “lobbying” restrictions.

Miami “cone of silence” until award. Proposors may not Miami “cone of silence” until award. Proposors may not contact anyone involved in the source selection process; contact anyone involved in the source selection process; evaluators may not respond or communicate with evaluators may not respond or communicate with proposors.proposors.

Orange County - A lobbying blackout period begins with Orange County - A lobbying blackout period begins with the issuance of the solicitation and continues until the the issuance of the solicitation and continues until the Board selects the successful proposer/bidder. Board selects the successful proposer/bidder.


Preparing and submitting the bid or proposalPreparing and submitting the bid or proposal .. 5. Avoid anti-competitive actions5. Avoid anti-competitive actions

Collusion between contractors destroys Collusion between contractors destroys competition.competition.

“ “all agreements, whether principal or subsidiary all agreements, whether principal or subsidiary in character, which in their necessary operation in character, which in their necessary operation upon the actions of contractors engaged in upon the actions of contractors engaged in bidding for public work, tend to restrain the bidding for public work, tend to restrain the natural rivalry and competition of the parties, and natural rivalry and competition of the parties, and thus produce a result disadvantageous to the thus produce a result disadvantageous to the public, are against public policy and void.”public, are against public policy and void.”



6. Attend and participate in any pre-bid 6. Attend and participate in any pre-bid conference; if there are questions, request conference; if there are questions, request clarifications publicly. clarifications publicly. Issues which should have properly been raised during Issues which should have properly been raised during

prebid activities will not be accepted as the basis for a prebid activities will not be accepted as the basis for a post bid award protest.post bid award protest.


AWARD of CONTRACTAWARD of CONTRACT TypicallyTypically

Notice of Intent to awardNotice of Intent to award


Agency discretion in evaluating Agency discretion in evaluating submissionssubmissions..

Contracting officers have wide discretion in Contracting officers have wide discretion in source selection decisions for public procurement.source selection decisions for public procurement.

Court does not wish to interfere with the day to Court does not wish to interfere with the day to day functioning of an agency day functioning of an agency

Courts will overturn an agency award only when Courts will overturn an agency award only when decision can be shown to be arbitrary, capricious, decision can be shown to be arbitrary, capricious, or beyond the scope of its discretion. or beyond the scope of its discretion.


Agency discretion in evaluating Agency discretion in evaluating submissionssubmissions..

Award may be successfully protested when the Award may be successfully protested when the agency:agency: Does not evaluate and select on the basis of Does not evaluate and select on the basis of

the criteria placed in the IFB or RFP;the criteria placed in the IFB or RFP; Does not evaluate all offerors equally;Does not evaluate all offerors equally; Does not evaluate respondent’s submission Does not evaluate respondent’s submission

properly; properly; Makes a decision that is clearly erroneous.Makes a decision that is clearly erroneous.


Typical Evaluation CriteriaTypical Evaluation Criteria..

Similar ExperienceSimilar Experience

Past Performance EvaluationsPast Performance Evaluations

Technical ProposalTechnical Proposal

PricePrice


AWARDING A BIDAWARDING A BID Contractor must be:Contractor must be: Responsible Responsible

Florida Statutes 287.012(24) “’[r]esponsible Florida Statutes 287.012(24) “’[r]esponsible vendor’ means a vendor who has the capability in vendor’ means a vendor who has the capability in all respects to fully perform the contract all respects to fully perform the contract requirements and the integrity and reliability that requirements and the integrity and reliability that will assure good faith performance”will assure good faith performance”

ResponsiveResponsive Florida Statutes 287.012(12) “responsive bidder” Florida Statutes 287.012(12) “responsive bidder”

or “responsive offeror” is “a person who has or “responsive offeror” is “a person who has submitted a bid which conforms in all material submitted a bid which conforms in all material respects to the invitation to bid or request for respects to the invitation to bid or request for proposals”proposals”


AWARDING A BIDAWARDING A BID

Most agencies reserve the right to reject all Most agencies reserve the right to reject all bids.bids.

Agency may waive minor irregularities in Agency may waive minor irregularities in bids. bids.


AWARDING A BIDAWARDING A BIDPROTESTS – Florida state agencies PROTESTS – Florida state agencies Pre awardPre awardPost awardPost award Florida state agencies subject to the Florida state agencies subject to the

Administrative Procedures Act (APA)Administrative Procedures Act (APA) Florida Statutes 120.57(3)Florida Statutes 120.57(3) Not all jurisdictions subject to the APA. Not all jurisdictions subject to the APA.

Counties and cities may have different Counties and cities may have different protest procedures. protest procedures.

Duval County; City of Jacksonville Duval County; City of Jacksonville Department of Administrative HearingsDepartment of Administrative Hearings


AWARDING A BIDAWARDING A BIDPROTESTS POST AWARD – Florida state agencies PROTESTS POST AWARD – Florida state agencies Florida Statutes 120.57(3)Florida Statutes 120.57(3)

Petitioner must file Notice of Protest in writing within Petitioner must file Notice of Protest in writing within 72 hours. 72 hours.

Petitioner must file formal written protest within 10 Petitioner must file formal written protest within 10 days after Notice of Protest.days after Notice of Protest.

Agency to stop procurement solicitation or award until Agency to stop procurement solicitation or award until decision or settlement of protest.decision or settlement of protest.

Department of Administrative Hearings will hold a Department of Administrative Hearings will hold a hearing within 30 days of protest, and produce hearing within 30 days of protest, and produce recommended order within 30 days of hearing. recommended order within 30 days of hearing.

Agency can accept or appeal recommended order. Agency can accept or appeal recommended order. Protestor can recover costs of successful protest and Protestor can recover costs of successful protest and

interest.interest.


Contracting Officer Authority - FloridaContracting Officer Authority - Florida The case for written Change Orders - Sovereign ImmunityThe case for written Change Orders - Sovereign Immunity

MEI’s extra work claims are for work totally outside the terms MEI’s extra work claims are for work totally outside the terms of the contract.of the contract. Without a written change order, the doctrine Without a written change order, the doctrine of sovereign immunity precludes recovery for the cost of the of sovereign immunity precludes recovery for the cost of the extra work. One final point must be addressed. MEI asserts extra work. One final point must be addressed. MEI asserts that the County waived the written change order requirements that the County waived the written change order requirements by directing work changes without following its own by directing work changes without following its own formalities. We decline to hold that the doctrines of waiver formalities. We decline to hold that the doctrines of waiver and estoppel can be used to defeat the express terms of the and estoppel can be used to defeat the express terms of the contract. Otherwise, the requirement of contract. Otherwise, the requirement of Pan AmPan Am that there that there first be an express written contract before there can be a first be an express written contract before there can be a waiver of sovereign immunity would be an empty one. An waiver of sovereign immunity would be an empty one. An unscrupulous or careless government employee could alter or unscrupulous or careless government employee could alter or waive thee terms of the written agreement, thereby leaving waive thee terms of the written agreement, thereby leaving the sovereign with potentially unlimited liability.the sovereign with potentially unlimited liability.

County of Brevard v. Miorelli Engineering, Inc., County of Brevard v. Miorelli Engineering, Inc., 703 So.2d 1049 703 So.2d 1049 (Fla.1997)(Fla.1997)

Sovereign immunity bars a contractor recovering in quantum Sovereign immunity bars a contractor recovering in quantum meruit against a government. See, e.g., meruit against a government. See, e.g., Champagne-Webber, Champagne-Webber, Inc. v. City of Fort LauderdaleInc. v. City of Fort Lauderdale, 519 So.2d 696 (Fla. 4th DCA 1988); , 519 So.2d 696 (Fla. 4th DCA 1988); Lee County v. Southern RoadbuildersLee County v. Southern Roadbuilders, 495 So.2d 189 (Fla. 2d DCA , 495 So.2d 189 (Fla. 2d DCA 1986), 1986), review deniedreview denied, 504 So.2d 768 (Fla. 1987), 504 So.2d 768 (Fla. 1987)


CONSULTANTS COMPETITVE CONSULTANTS COMPETITVE NEGOTIATION ACT NEGOTIATION ACT

CCNACCNA FS 287.055FS 287.055 Selection method for engineers, Selection method for engineers,

architects, surveyorsarchitects, surveyors Applies to almost every public Applies to almost every public

body in the state of Floridabody in the state of Florida


CCNACCNA Establishes both the process and Establishes both the process and

the criteria to be used in the criteria to be used in selecting professional servicesselecting professional services

For a “project”For a “project” The Contractor may not hire an The Contractor may not hire an

engineer or architect to get engineer or architect to get around this statutearound this statute


CCNACCNA Three step processThree step process Public AnnouncementPublic Announcement

Typically the public announcement is the scope of Typically the public announcement is the scope of the projectthe project

Competitive Selection Process Competitive Selection Process The criteria for selection is contained in the CCNAThe criteria for selection is contained in the CCNA The agency will choose the three most qualifed The agency will choose the three most qualifed

firmsfirms Competitive NegotiationCompetitive Negotiation

The agency may then negotiate with the first The agency may then negotiate with the first ranking firm for services.ranking firm for services.

Fees may not be discussed until this stepFees may not be discussed until this step


Liquidated DamagesLiquidated Damages May be enforced as long as May be enforced as long as

not so excessive as to constitute a not so excessive as to constitute a penalty and penalty and

damages were not ascertainable at damages were not ascertainable at the time the contract was entered the time the contract was entered into by the parties.into by the parties.


No Damage for Delay ClauseNo Damage for Delay Clause(1) Generally enforceable. (1) Generally enforceable.

See, e.g., See, e.g., Triple R Paving, Inc. v. Broward CountyTriple R Paving, Inc. v. Broward County, 774 , 774 So.2d 50 (Fla. 4th DCA 2000); So.2d 50 (Fla. 4th DCA 2000); C. A. Davis, Inc. v. City of MiamiC. A. Davis, Inc. v. City of Miami, 400 , 400 So.2d 536 (Fla. 3rd DCA 1981) (.”[t]he law in Florida is that so So.2d 536 (Fla. 3rd DCA 1981) (.”[t]he law in Florida is that so long as a public authority does not willfully or knowingly delay job long as a public authority does not willfully or knowingly delay job progress it will avoid liability under a ‘no damage for delay’ progress it will avoid liability under a ‘no damage for delay’ clause”).clause”).

(2) Generally strictly construed(2) Generally strictly construed(3) But exceptions to enforcing no-damages-for-delay.. (3) But exceptions to enforcing no-damages-for-delay..

““Florida law recognizes several exceptions to the Florida law recognizes several exceptions to the enforcement of a No Damage for Delay Clause, such as an owner’s enforcement of a No Damage for Delay Clause, such as an owner’s or its agent’s knowing and unreasonable delay of a project, or or its agent’s knowing and unreasonable delay of a project, or interference with the project.” interference with the project.” Metropolitan Dade County v. Frank Metropolitan Dade County v. Frank J. Rooney, IncJ. Rooney, Inc., 627 So.2d 1248 (Fla. 3rd DCA 1993), citing ., 627 So.2d 1248 (Fla. 3rd DCA 1993), citing Southern Gulf Utilities, Inc. v. Boca Ciega Sanitary DistrictSouthern Gulf Utilities, Inc. v. Boca Ciega Sanitary District, 238 , 238 So.2d 458 (Fla. 2d DCA), So.2d 458 (Fla. 2d DCA), cert. deniedcert. denied, 240 So.2d 813 (Fla. 1970)., 240 So.2d 813 (Fla. 1970).

(4) Florida courts have permitted government contractors to (4) Florida courts have permitted government contractors to use the Eichleay formula to recover unabsorbed home use the Eichleay formula to recover unabsorbed home office overhead stemming from delays and inefficiencies.office overhead stemming from delays and inefficiencies.


Differing Site ConditionsDiffering Site Conditions See JEA contractSee JEA contract Clause will only be triggered where an Clause will only be triggered where an

inaccurate representation has been inaccurate representation has been relied onrelied on

If there is no representation, there will If there is no representation, there will be no recovery if the contractor relies be no recovery if the contractor relies on his own inadequate representation. on his own inadequate representation.

Part VPart VPublic Contract ReviewPublic Contract Review

Jacksonville Electric Authority (JEA)Jacksonville Electric Authority (JEA) Provides electric, water, and sewer for Provides electric, water, and sewer for

Duval County and the City of Jacksonville Duval County and the City of Jacksonville Progressive procurement proceduresProgressive procurement procedures Not subject to the Administrative Not subject to the Administrative

Procedures Act (Florida Statutes)Procedures Act (Florida Statutes) Information on JEA, current solicitations, Information on JEA, current solicitations,

and contracts available online at and contracts available online at http://externalapps.jea.com/eprocurement/bid_info.asp

Public Contract ReviewPublic Contract Review ABOUT JEAABOUT JEA Electric SystemElectric System

JEA owns and operates three generating plants and all transmission and distribution facilities. A fourth power JEA owns and operates three generating plants and all transmission and distribution facilities. A fourth power plant, the St. Johns River Power Park (SJRPP), is owned jointly by JEA and the Florida Power & Light Company plant, the St. Johns River Power Park (SJRPP), is owned jointly by JEA and the Florida Power & Light Company (FPL) and operated by JEA. JEA and FPL are also joint owners of Unit 4 at Georgia Power Company's coal-fired (FPL) and operated by JEA. JEA and FPL are also joint owners of Unit 4 at Georgia Power Company's coal-fired Robert W. Scherer Plant (Plant Scherer), which is located in Macon, Georgia. JEA owns a 200 net megawatt Robert W. Scherer Plant (Plant Scherer), which is located in Macon, Georgia. JEA owns a 200 net megawatt share of Unit 4. JEA's ownership interest in Scherer is structured as a separate JEA bulk power supply system. In share of Unit 4. JEA's ownership interest in Scherer is structured as a separate JEA bulk power supply system. In addition, JEA produces 3.2 megawatts from a methane-fueled generating facility at the Girvin Road Landfill. addition, JEA produces 3.2 megawatts from a methane-fueled generating facility at the Girvin Road Landfill. JEA's net generating capability is 2,361 megawatts.JEA's net generating capability is 2,361 megawatts.

Capacity expansion and renovation projects demonstrate JEA's commitment to environmental leadership, fuel Capacity expansion and renovation projects demonstrate JEA's commitment to environmental leadership, fuel diversification and rate stability. JEA's newest generating facility is Brandy Branch, located in west Jacksonville, diversification and rate stability. JEA's newest generating facility is Brandy Branch, located in west Jacksonville, home to three 170 megawatt combustion turbine units. These units are capable of operating on both natural home to three 170 megawatt combustion turbine units. These units are capable of operating on both natural gas and diesel fuel. Units1 and 2 went into commercial operation May 31, 2001, followed by Unit 3 on October gas and diesel fuel. Units1 and 2 went into commercial operation May 31, 2001, followed by Unit 3 on October 12, 2001.12, 2001.

The Northside Generating Station Repowering Project made Jacksonville home to two of the largest circulating The Northside Generating Station Repowering Project made Jacksonville home to two of the largest circulating fluidized bed combustors, or CFBs, in the world. These CFBs produce nearly 300 megawatts each and utilize fluidized bed combustors, or CFBs, in the world. These CFBs produce nearly 300 megawatts each and utilize coal and petroleum coke as fuels.coal and petroleum coke as fuels.

Water and Sewer SystemsWater and Sewer SystemsJEA's Water System consists of 150 artesian wells tapping the Floridian Aquifer, which is one of the world's JEA's Water System consists of 150 artesian wells tapping the Floridian Aquifer, which is one of the world's most productive aquifers. Water is distributed through 44 water treatment plants and 3,480 miles of water most productive aquifers. Water is distributed through 44 water treatment plants and 3,480 miles of water lines. More than 2,500 miles of collection lines and six regional sewer treatment plants comprise the JEA sewer lines. More than 2,500 miles of collection lines and six regional sewer treatment plants comprise the JEA sewer system.system.

JEA is committed to improving water quality of the St. Johns River. One outstanding example of how we're JEA is committed to improving water quality of the St. Johns River. One outstanding example of how we're working to meet our goal to reduce nitrogen release into the river is through the use of reclaimed water for working to meet our goal to reduce nitrogen release into the river is through the use of reclaimed water for irrigation.irrigation.

The Energy AuthorityThe Energy AuthorityJEA is also a founding member of The Energy Authority (TEA), which was created in August 1997 to represent JEA is also a founding member of The Energy Authority (TEA), which was created in August 1997 to represent its member utilities in the sale and purchase of wholesale electricity. Today, TEA membership consists of 11 its member utilities in the sale and purchase of wholesale electricity. Today, TEA membership consists of 11 public power utilities in seven states. public power utilities in seven states.

Water and Sewer Expansion AuthorityWater and Sewer Expansion AuthorityThe Water and Sewer Expansion Authority was established in 2003 for the purpose of addressing challenges The Water and Sewer Expansion Authority was established in 2003 for the purpose of addressing challenges experienced by the approximately 175,000 homeowners dependent upon septic systems in connecting to experienced by the approximately 175,000 homeowners dependent upon septic systems in connecting to municipal water and sewer. Many of these septic systems are aged and failing, which not only causes municipal water and sewer. Many of these septic systems are aged and failing, which not only causes difficulties for homeowners in those areas, but presents environmental challenges to Duval County creeks and difficulties for homeowners in those areas, but presents environmental challenges to Duval County creeks and waterways.waterways.

Public Contract ReviewPublic Contract Review Floradale Water Sewer and Floradale Water Sewer and

Drainage ImprovementsDrainage Improvements WCS-015-05WCS-015-05 Standard type of JEA contractStandard type of JEA contract Available online at Available online at

http://externalapps.jea.com/eprocurement/bid_info.asp

Public Contract ReviewPublic Contract Review RTFCRTFC THERE ARE NO “STANDARD” OR THERE ARE NO “STANDARD” OR

“TYPICAL” CONTRACTS OR “TYPICAL” CONTRACTS OR SOLICITATIONSSOLICITATIONS

The Engineer/Contractor at most The Engineer/Contractor at most risk is the contractor that risk is the contractor that assumes this contract is like the assumes this contract is like the last 40 contracts.last 40 contracts.

Public Contract ReviewPublic Contract Review Contract ReviewContract Review Make a working copy of the Make a working copy of the

contract.contract. Label it the working copy with your Label it the working copy with your

name on itname on it Get a markerGet a marker Get several boxes of tabsGet several boxes of tabs Get several colors of ink pensGet several colors of ink pens Get a fresh cup of coffee/beverageGet a fresh cup of coffee/beverage

Public Contract ReviewPublic Contract Review Highlight all suspect clauses Highlight all suspect clauses Identify all questionsIdentify all questions Make notes with one color inkMake notes with one color ink Tab all pages with questionsTab all pages with questions Place a check at the bottom of all Place a check at the bottom of all

pages without a questionpages without a question When you find answers, go back to the When you find answers, go back to the

questions and write down the answer questions and write down the answer and who provided the answerand who provided the answer

JKRAUSE

Public Contract ReviewPublic Contract Review Always keep your working copyAlways keep your working copy Always call the agency to ask Always call the agency to ask

questions about the contract, but questions about the contract, but don’t rely on those answers don’t rely on those answers exclusivelyexclusively

Should you feel the need to consult Should you feel the need to consult with an attorney, mark the questions with an attorney, mark the questions in the contract that concern you to in the contract that concern you to focus their attentionfocus their attention

JKRAUSE

Contract Clauses Contract Clauses Specific IssuesSpecific Issues

Escalation ClausesEscalation Clauses SteelSteel Concrete Concrete Fuel Fuel

Pay when paidPay when paid Paperless contractingPaperless contracting

DisclaimerDisclaimer

All rights are reserved. These materials are designed to provide general information on the seminar topic

presented, and are provided with the understanding that the publisher is not

engaged in rendering any legal or professional services.

Although these materials are prepared by professionals, they should not be used

as a substitute for professional services. If legal or other professional

advice is required, the services of a professional should be sought.

Questions? Questions? Feel free to contact meFeel free to contact me

Thanks to the Associated General Contractors for their support in providing slides and illustrations for this presentation. For additional information onthe AGC visit their website at agc.org.

James E. Krause, AttorneyJames E. Krause, AttorneyRegan Zebouni & Walker PARegan Zebouni & Walker PA

9905 St Augustine Road, Suite 4009905 St Augustine Road, Suite 400Jacksonville, Florida 32257Jacksonville, Florida 32257

Direct 904.861.0192Direct 904.861.0192Mainline 904.356.1300Mainline 904.356.1300

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PUBLIC CONTRACTS Project Acquisition and Project Delivery Systems

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