Volume 8 - Number 24 | June 14, 2010

Download Print Send a summary of this page to someone via email.

Recent Issues

  EDITOR'S NOTES | Issue 8-24
The traditional method of procuring a construction project is the preparation of a complete set of drawings and specifications, solicitation of bids and award of a single construction contract. As new alternative methods of construction procurement have evolved, the roles of the parties have changed. And, new responsibilities carry new liability exposure. This has been particularly true for design professionals.

In a recent case involving a multiple prime contract project, a design firm filled the role of construction manager, scheduling and coordinating the work of various trade contractors. Under Ohio law, design professionals are insulated against liability to contractors for design errors. This is not true, however, when a design professional assumes responsibility for managing the construction process.

Other cases this week involved the use of proposals instead of competitive bids and an agency's reevaluation of proposals without reopening discussions. A state agency could use proposals but had to show that competitive bidding was not practicable or advantageous. And, a federal agency was required to reopen discussions when it identified new concerns affecting eligibility for contract award.
  CONTRACTOR ALLOWED TO SUE DESIGN PROFESSIONAL ACTING AS CONSTRUCTION MANAGER

Although under Ohio law, a design professional cannot be sued by a contractor for design errors, the design professional can be sued for negligence in furnishing construction management services.
  AGENCY FAILED TO JUSTIFY USE OF PROPOSALS INSTEAD OF COMPETITIVE BIDDING

A state agency failed to justify its decision to procure a construction contract through a request for proposals rather than sealed bidding. There was nothing unusual about the project and the agency could not use undisclosed evaluation criteria.
  NEW AGENCY CONCERNS MANDATED REOPENING OF DISCUSSIONS
When an agency reevaluated proposals and downgraded one offeror’s proposal, it needed to identify new concerns. The agency was therefore obligated to reopen discussions to give the offeror the opportunity to address those new concerns.