TABLE OF CONTENTS While the number of proposers on design-build projects is normally small, resulting in reduced competition, the cost associated with the preparation of design-build proposals can be substantial, particularly if the RFP requires significant preliminary design work. As a result, design-builders are particularly sensitive to the circumstances under which an owner can choose to abandon the project. Two cases illustrate the reasons for this concern.
Case 1: SC Testing Technology, Inc . In SC Testing Technology, Inc. v. Department of Environmental Protection, [85] an RFP was issued by the Maine Department of Environmental Protection (DEP) for the design, construction, and operation of emission inspection stations throughout the state of Maine. This program was being implemented through legislation authorized to comply with certain federal Clean Air Act requirements.
After receiving the RFP, several bidders expressed concerns regarding the devastating impact on their businesses if the legislature repealed the emissions testing program after contract award. Notwithstanding these concerns, DEP issued an amended RFP that included the following language in Section 5.N:
[i]n the event the Maine Legislature repeals all or part of the program, the Department and the State of Maine shall bear no responsibility to compensate the Contractor. [86]
During contract negotiations with the successful proposer (SCI), DEP repeatedly rejected attempts to include language that would partially compensate SCI for its investment in the event of a legislative repeal of the program.
The contract ultimately negotiated between the parties appears to have consisted of a...
