Contract Bidding Archives

Scheduling experts have a variety of methods available to them for analyzing delays, but all methods are not equally reliable or persuasive, a point well illustrated by the April, 2017 decision of the United States Court of Federal Claims in K-Con Building Systems, Inc. v. United States, 131 Fed.Cl. 275 (2017).  That decision provides a detailed analysis of the competing opinions of the parties’ scheduling experts, and the court found that the scheduling analysis method employed by the defendant was more persuasive.  The court stated: “The parties present diametrically opposed descriptions of the critical path of performance—plaintiff submits that the critical path of performance should be based on an as-planned, forward-looking schedule, and defendant contends that the critical path of performance should be based on an as-built, backward-looking schedule. The court agrees with defendant that the proper way to determine what activities were on the critical path of performance in this case is to examine what actually occurred during contract performance. There are two reasons for this conclusion. First, a critical path schedule that relies solely on the schedule set forth in the contract specifications does not account for any subsequent changes to the schedule authorized by the contracting agency…. Second, the use of a contractually based critical path schedule does not reflect that plaintiff did not actually perform in accordance with the schedule set forth in the contract specifications.”

On July 10, 2017, in Clearwater Construction v. Northampton County, the Pennsylvania Commonwealth Court, in a case of first impression, ruled that a disappointed bidder  lacked standing to challenge a contract awarded under the Public Private Transportation Partnership Act (P3 Act), 74 Pa. C.S. §§ 9101-9124, holding that “Absent a statutory provision to the contrary, generally disappointed bidders lack standing to challenge the award of a government contract. Section 9109(n) of the P3 Act does not provide that statutory basis as its application is limited to a “development entity,” which by statutory definition is a party to the contract.”  The case may be found at this link: http://www.pacourts.us/assets/opinions/Commonwealth/out/1658CD16_7-10-17.pdf?cb=1  

As a construction lawyer, I deal with cases involving non-payment every day. Sometimes I represent the owner and on other occasions I represent the contractor or subcontractor. I have even represented sureties on payment related issues. No matter which company I represent, however, payment issues often come down to one single common denominator: a lack of practical planning combined with a failure to build contingencies into bids.

The construction world continues to be changed – like the rest of the business world – by technology. With the advent of smart phones, people became more flexible and productive. As smart phones become even smarter, the growing opportunities for increased efficiency and productivity seem to be presently focused on integration. A new application for smart phones seems to fit that description perfectly.

On May 21, 2012, the Pennsylvania Commonwealth Court addressed an issue which comes up often but has not been addressed by Pennsylvania appellate courts. The issue: Does a general contractor’s use of a subcontractor’s bid in the general contractor’s bid constitute an acceptance of the subcontractor’s bid?