Florida Construction Law

West Construction, Inc . v. Florida Blacktop, Inc., 37 Fla. L. Weekly D959c, Case No. 4D11-408, filed April 25, 2012. Reversed final judgment entered for paving subcontractor against contractor for lack of an enforceable contract between the parties. Subcontractor’s bid proposal contained provisions that if the bid was used in any way to “shop” prices for the work, a binding contract would be created. Contractor had used subcontractor’s bid in its successful efforts to obtain a contract with a public entity (The Villages of Royal Palm Beach), and had even identified the subcontractor in its contract proposal, but hired a different paver to perform the work.   In holding that an offer cannot prescribe conditions of rejection so as to turn silence on the part of the offeree into acceptance, it distinguished W. R Townsend Contracting, Inc. v. Jensen Civil Construction, Inc. , 728 So. 2d 297 (Fla. 1 st DCA 1999) in which an express contract was found to have been created by general ...

A contract that places the risk of differing site conditions on the contractor can still be profitable, but all of the bidders should be aware of the risks associated with the project.  If a bidder is concerned that the owner intends to place the risk of unforeseen conditions on the contractor, then the issue should be raised with the owner for clarification prior to the bid, e.g. at the pre-bid conference.  If the bid documents do not contain a differing site conditions clause, and/or changes clause, the owner should be asked whether the omission was intentional.  In this manner, even if the absence of the clauses was intentional, at least all of the bidders will be alerted to the increased risk associated with the contract, and all will be on equal footing.  It would be patently unfair for an owner to intentionally take advantage of the bid process by encouraging a bidder to submit a low price under the mistaken belief that the contract will allow an equitable ad...

A public entity has the discretion to award contracts to contractors, but the award of a public works project must not be "arbitrary or capricious," and must be based on express criteria cited in the bid package.  City of Sweetwater v. Solo Const. Corp ., 823 So.2d 798 (Fla. 3d DCA 2002). Trenton H. Cotney Board Certified in Construction Law Trent Cotney, P.A. 1207 N Franklin St, Ste 222 Tampa, FL 33602 (813) 579-3278 www.trentcotney.com