Harry Pepper & Associates v. City of Cape Coral (352 So. 2d, 1190) Bid for construction of water treatment plant – required all pump mfg. to be used, must be submitted for approval and acceptance Gulf contracting submitted bid, but submitted name of mfg. that had not been approved and was not acceptable to engineer Gulf was apparent low bidder City engineer contacted Gulf and asked them to indicate they would use acceptable pump mfg. if awarded bid – Gulf did so
Accela, Inc., v. Sarasota County Challenged piggybacking by County –Purchase of software to track land management –County conducted two site visits where software had been implemented –County piggybacked on vendors ( CSDC) most current contract from Wisconsin
Accela From 9 modules to 40 (only 8 common between both) County argued this made the contract substantially the same From $176k to $711k Implementation from $269k to $688K 5 YR maintenance from $31K to 179K
Accela In practice of course, the County ( or any agency) and the vendor must draw up a fresh contract. The degree to which this contract can diverge from the other government entity's contract is a significant issue in the present lawsuit.
Accela Was govt arbitrary or capricious in awarding to Govt agency must follow its own rules ordinances (City of Hollywood v. Witt) Terms and scope of new piggybacked contract must be substantially the same as original Cannot use another entity to begin negotiation
Accela …given that the piggyback process contemplated by the Code is intended to be competitive, we cannot agree that the County and CSDC's contract-making process represented a valid manifestation of the piggyback provision. That is, the County was not permitted to use another entity's contracts merely as a basis to begin negotiations,…
Accela a public body has wide discretion in soliciting and accepting bids for public improvements and its decision, when based on an honest exercise of this discretion, will not be overturned by a court even if it may appear erroneous and even if reasonable persons may disagree. Liberty County v. Baxter's Asphalt & Concrete, Inc., 421 So.2d 505, 507 (Fla.1982). Liberty County v. Baxter's Asphalt & Concrete, Inc., 421 So.2d 505, 507 (Fla.1982)
Accela However, we conclude that that County went beyond the bounds of its discretion when it violated its Procurement Code. See Dep't of Transp. v. Groves-Watkins Constructors, 530 So.2d 912, 913 (Fla.1988) (noting that the rule that an honest exercise of... discretion cannot be overturned does not apply when there is a finding of illegality, fraud, oppression, or misconduct (emphasis added)) (quoting Liberty County, 421 So.2d at 507).Dep't of Transp. v. Groves-Watkins Constructors, 530 So.2d 912, 913 (Fla.1988) Liberty County, 421 So.2d at 507).
Petroleum Traders Corp, v Baltimore County, MD \
When is a contract, a contract Baltimore County is a member of cooperative purchasing group Contract for gasoline and diesel fuel Participating entities would purchase all fuel from successful bidder Counties had option to lock-in a fixed price for fuel over a set period of time, instead of prevailing index Winning bidder would purchase futures to ensure supply at fixed price
PTC informed by County that it had won bid and awarded contract County issued term contract award to PTC signed by Deputy Purchasing Agent this is notice that contract…has been awarded to you… County purchased fuel for a year and a half Elected to lock in prices for co-op during 3 different periods Market price rose during each period above locked in price, thus yielding a considerable savings
2005 (Katrina and Wilma) Prices began to rise County locked in for 2 additional periods including Dec, 05 to April, 06D Oil prices then began to fall (significantly) and locked in prices exceeded the available market price County demanded PTC re-negotiate pricing and PTC refused having already purchased futures Relationship became adversarial County continued to order and use of lock in of prices
County asked for locked in prices in December, 05, for period April, 06 through December, 06 Prior to purchasing additional futures, PTC requested estimated quantities of fuel and assurances County would honor contract County construed this as a delay and breach of contract County formally terminated contract December 7, 2005 PTC advised County of significant loss this would cause as PTC had purchased the futures as requested. PTC suffered a significant loss and filed suit against County
Arguments What was Countys original argument and justification for termination? County added an additional argument during initial litigation. What was it?
County argued there was never a valid contract –Charter requires that County exec or designee execute commodities contract and that attorney approve as to form. –As neither of these formalities were meant, the contract could not be valid –However the code vests significant authority in the County Agent to make all purchases for supplies… a power which he may delegate –County was simultaneously arguing that PTC breached a contract, but that no valid contract existed
Rushlight Sprinkler Co., v. City of Portland (219 P. 2d, 732) Rushlight submitted bid in the amount of $429, , with bid bond Next low bid was $671,000 After opening, Rushlight noted an error in their bid, (omission of $99,225.68), and asked to withdraw bid Bid was awarded to Rushlight, and bid deposit check was cashed Rushlight refused to proceed and sought to recover damages*