Florida Contractor Says City Must Negotiate Rejected Bid
Neubert Construction has sued to force Fort Myers to talk to it
City governments in most cases can reject bids that are too high, even when there is a single bidder. But a Florida contractor whose bid on a small project was recently rejected by the City of Fort Myers, Fla., says that isn't the case and that Florida law, if followed, requires the city to return to the negotiating table again after previous negotiations failed.
In this case, the work involves repairs to the surroundings of a valued local statue, the Spirit of Fort Myers, which is known locally as Rachel at the Well. The statue and columns, fences and retaining wall, referred to as the statue's "surround," sustained damaged from Hurricane Ian in September 2022.
Fort Myers had the figure of Rachel repaired last year, but the columns and surrounding plaza were not.
And now Ft. Myers wants to use grant funds from the Federal Emergency Management Agency, which distributes money to state and local governments to rebuild after natural disasters.
Last year, Fort Myers sought a bidder for the work, and Neubert Construction Services submitted the sole bid with a price of $450,000. Six months later, the city tried again and Neubert was again the sole bidder, but the price was $815,000.
On Feb. 25, the Fort Myers City Council voted to end negotiations with Neubert and cancel the solicitation. WGCU, a local television station, reported that City Manager Marty Lawing "stated that an unnamed contractor has expressed [interest in] doing the work at a more economical price."
Tyler Neubert, vice president of Neubert Construction, then wrote in a letter to the city that his firm would file a bid protest.
Looking for quick answers on construction and engineering topics?
Try Ask ENR, our new smart AI search tool.
Ask ENR →
And last month, Neubert Construction sued the City of Fort Myers in state court, asking a judge to force the city to negotiate with Neubert. In prior negotiations with the city, Neubert claimed, Fort Myers didn't negotiate in good faith.
"Instead," claims Neubert in its lawsuit, "the city simply arbitrarily demanded the work be done for a significantly lower amount than the bid and did not engage in any substantive negotiations or discussions."
Among the items in the bid that added costs unnecessarily to the project scope, says Neubert, was a requirement for an onsite trailer for the 90-day project. The project is short and there's no room for one anyway, claimed the contractor.
A full-time superintendent isn't needed either, but that's a requirement, too, Neubert argued.
After Neubert filed a protest, the city deemed that the protest came too late.
Neubert, its lawsuit argues, filed its protest on time according to the terms of the city's request for proposals and the state of Florida's statutes covering protests that the city generally abides by.
Neubert's lawsuit is asking a judge to prevent Fort Myers from awarding the project to another company and to force the city to consider its bid protest.
ENR could not immediately reach Fort Myers City Engineer Nicole Setzer for a comment.
