Construction procurement is no longer limited to the traditional form of design, bid and construct. The advent of new types of contracting has necessarily altered the public procurement process itself. Yet, many of the guidelines and principles were developed in the context of traditional bidding.

The Minnesota Supreme Court recently grappled with the concept of “bid responsiveness” when applied to a request for proposals on a “design-build, best-value” procurement. The court had to determine if a proposal was responsive or whether the traditional concept even applied to a procurement of this nature.

Other cases this week address recovery of lost profit on unperformed work and the conversion of a cost-plus contract to fixed-price. A contractor was allowed to recover its performance costs from a payment surety, and then sue the principal on the bond for lost profit on unperformed work that was allegedly wrongfully terminated. And, a change order converted a cost-plus contract to fixed-price contract, relieving the contractor of the need to prove its actual costs.