Certain publicly bid and awarded contracts have to be approved by the New York Office of the State Comptroller. In those instances where you want to challenge the contract award (sometimes called a bid protest), the Comptroller's office has established procedures to be followed.
Generally, there are two types of protests that you can file with the Comptroller. One is an appeal of a protest of a decision made by the procuring agency. The other is a direct protest filed with the Comptroller's office.
Protesting Agency Determination
Any interested party (such as another contractor that bid on the contract and lost) may appeal the contract award and the agency's determination by filing a written protest with the Comptroller within ten (10) business days of its receipt of the agency protest determination. While the Comptroller can waive the ten (10) day requirement, we never suggest being a test case. The written appeal must be served on the contracting agency, the successful bidder and any other party that participated in the protest to the agency.
Direct Protest to the Comptroller
A direct appeal to the Comptroller is permitted if (1) the contracting agency does not have a written protest procedure; (2) the contracting agency has not provided notice of its protest procedure in the solicitation document; or (3) the facts that give rise to the protest are not known to, and could not have been reasonably known to, an interested party prior to the date by which a protest was required to be filed with the contracting agency.
The direct protest to the Comptroller, like the agency protest, must be in writing and must be filed within ten (10) days of notice of the contract award. Again, while the Comptroller can waive the notice requirement, it is not a good idea to be a test case. In addition, if the appealing party is not provided with notice of the contract award then it may file a protest with the Comptroller at any time after the contract is awarded and prior to the Comptroller's approval of the contract.
To read the Comptroller's detailed procedures you can click here.
Vincent T. Pallaci is the managing member of Kushnick Pallaci PLLC. His practice focuses on construction law including issues such as bid protests in the construction industry.
Showing posts with label Bid. Show all posts
Showing posts with label Bid. Show all posts
Tuesday, November 15, 2016
Saturday, February 5, 2011
School Construction Authority's Disqualification of Contractor Upheld
In Matter of Surton Construction v. NYC School Construction Authority a contractor challenged being disqualified from the list of contractors allowed to bid or work on public projects within the City of New York. The School Construction Authority claimed that the contractor engaged in a "persistent and repeated pattern of knowingly and intentionally submitting false and misleading information to the SCA in connection with the prequalification review process." This pattern led to disqualification. The trial court upheld the determination and the determination was confirmed by the Appellate Division.
This should be a warning for contractors to carefully consider the accuracy of documents they submit in the bidding process. False statements may doom them not just for the particular bid but from being able to bid on any project in the future.
Vincent T. Pallaci is a partner at the New York law firm of Kushnick Pallaci, PLLC where his practice focuses primarily on the area of construction law. He can be reached at (631) 752-7100 or vtp@kushnicklaw.com
This should be a warning for contractors to carefully consider the accuracy of documents they submit in the bidding process. False statements may doom them not just for the particular bid but from being able to bid on any project in the future.
Vincent T. Pallaci is a partner at the New York law firm of Kushnick Pallaci, PLLC where his practice focuses primarily on the area of construction law. He can be reached at (631) 752-7100 or vtp@kushnicklaw.com
Saturday, October 16, 2010
Bonds, bonds and more bonds!
The term "bond" is thrown around often in the construction industry. In fact bonds have become a crucial part of doing business. But there are a few different types of bonds that serve different purposes.
Payment Bonds
A payment bond is a bond that is usually obtained by the general contractor as a requirement of the owner. The payment bond secures that all subcontractors and suppliers are paid by the general contractor. The payment bond protects the owner because it can prevent subcontractors and suppliers from filing mechanic's liens when they are not paid. The payment bond protects subcontractors and suppliers because it is an added security for payment. Making a bond claim is almost always much easier, cheaper and quicker than enforcing a mechanic's lien if you are not paid.
Performance Bonds
A performance bond is a bond that is also usually obtained by the general contractor as a requirement of the owner. The performance bond is a security for the owner against the general contractor's non-performance. If the work performed by the contractor is defective or deficient it is usually something that will be covered under the performance bond. Likewise if the general contractor simply does not or cannot complete the project the performance bond protects the owner against the failure to perform. The surety that issued the performance bond will usually hire someone else to come in and correct the defective work or complete the project.
Mechanic's Lien Discharge Bonds
When a mechanic's lien is place on a piece of property one way to remove the lien is to obtain a mechanic's lien discharge bond. A mechanic's lien discharge bond is obtained from a surety and by statute will be 110% of the amount of the mechanic's lien. Essentially the mechanic's lien is removed from the real property and attached to the mechanic's lien discharge bond.
Maintenance Bonds
Maintenance bonds are bonds that more or less guarantee the construction work for a period of time. For example, the bond may provide that if an item fails the contractor will come back and repair it free of cost. If the contractor does not do so, and should have done so, the surety that issued the maintenance bond will hire someone to correct the issue.
Bid Bonds
A bid bond is usually seen on public projects. Every contractor submitting a bid on the contract is required to include a bid bond. A bid bond protects the owner against financial loss if the bidder (the contractor) withdraws the bid or does not enter into a contract for the project if the bid is won.
Vincent T. Pallaci is a partner at the New York law firm of Kushnick Pallaci, PLLC where his practice focuses primarily on the area of construction law. He can be reached at (631) 752-7100 or vtp@kushnicklaw.com
Payment Bonds
A payment bond is a bond that is usually obtained by the general contractor as a requirement of the owner. The payment bond secures that all subcontractors and suppliers are paid by the general contractor. The payment bond protects the owner because it can prevent subcontractors and suppliers from filing mechanic's liens when they are not paid. The payment bond protects subcontractors and suppliers because it is an added security for payment. Making a bond claim is almost always much easier, cheaper and quicker than enforcing a mechanic's lien if you are not paid.
Performance Bonds
A performance bond is a bond that is also usually obtained by the general contractor as a requirement of the owner. The performance bond is a security for the owner against the general contractor's non-performance. If the work performed by the contractor is defective or deficient it is usually something that will be covered under the performance bond. Likewise if the general contractor simply does not or cannot complete the project the performance bond protects the owner against the failure to perform. The surety that issued the performance bond will usually hire someone else to come in and correct the defective work or complete the project.
Mechanic's Lien Discharge Bonds
When a mechanic's lien is place on a piece of property one way to remove the lien is to obtain a mechanic's lien discharge bond. A mechanic's lien discharge bond is obtained from a surety and by statute will be 110% of the amount of the mechanic's lien. Essentially the mechanic's lien is removed from the real property and attached to the mechanic's lien discharge bond.
Maintenance Bonds
Maintenance bonds are bonds that more or less guarantee the construction work for a period of time. For example, the bond may provide that if an item fails the contractor will come back and repair it free of cost. If the contractor does not do so, and should have done so, the surety that issued the maintenance bond will hire someone to correct the issue.
Bid Bonds
A bid bond is usually seen on public projects. Every contractor submitting a bid on the contract is required to include a bid bond. A bid bond protects the owner against financial loss if the bidder (the contractor) withdraws the bid or does not enter into a contract for the project if the bid is won.
Vincent T. Pallaci is a partner at the New York law firm of Kushnick Pallaci, PLLC where his practice focuses primarily on the area of construction law. He can be reached at (631) 752-7100 or vtp@kushnicklaw.com
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