Spring 2018

Local Government

What a Bright Idea! Florida’s First District Court of Appeal Applies Common Sense to the Government in the Sunshine Law

by Andrew Schwartz

An open door policy is not necessarily the best thing for public procurements — especially negotiated ones. Basically, engaging in open door negotiations gives an unfair advantage to whomever gets to negotiate last.2 The Florida legislature recognizes the natural conflict or tension between the competing needs for open government and fair competition, and enacted Florida Statutes section 286.0113(2) as a work-around. Section 286.0113(2)(b)(2) exempts from the public meeting requirements “[a]ny portion of a team meeting at which negotiation strategies are discussed.”3 “But the exempted meetings do not forever remain out of public view”4: section 286.0113(2)(c) provides that “[a] complete recording shall be made of any portion of an exempt meeting,” and the recordings become publicly available at “such time as the agency provides notice of an intended decision or . . . 30 days after opening the bids, proposals, or final replies, whichever occurs earlier.”

Employees

The Rhetoric and Reality of Termination for Default

by Steven W. Feldman

Termination for default (or termination for cause as it is known in commercial contracts)1 has been a fundamental government right in public procurement since the nineteenth century. 2 Despite the government’s unquestioned need for this remedy, courts and boards frequently make negative observations about the procedure. Some cases declare that termination for default is a “harsh”3 remedy and “disfavored” in the law.4 A refrain with roots going back to 1875 is that “default terminations [are] a species of forfeiture.”5

News from the Committees

News from commercial products & services committee

News from the Chair

by Aaron Silberman

As a credit card company once said: “Membership has its privileges.” If you are reading this, you are likely already a member of the Section and know many of the privileges of that membership, including access to life-altering columns like this one. If you are not a member, you should be; and, if you are, you can benefit even more by explaining to your friends and colleagues why they should join the Section.