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subdivision opened the bids, but before it in mind that at least one Ohio court has
made an award. In those cases, it noted that found that no negotiations are permissible
if a public entity expressly reserves the right following bid opening, numerous Ohio courts
to conduct additional negotiations after bid have found that public entities may opt to
opening, then it has not abused its discretion negotiate non-material contractual provisions
in doing so. Finally, the court found that even that do not affect the amount of the bid and
if the disappointed bidder retained a property do not otherwise afford the winning bidder
interest in the work post-award, it would an advantage not allowed to the other bidders.
nevertheless find that negotiations between If a public entity chooses to do something
the winning bidder and the county did not other than follow the safest course, or if a
alter the terms of the request for proposals contractor has to decide if it is going to ask for
in a material or otherwise erroneous way. In modifications, it should research the law of the
so concluding, it analyzed R.C. § 307.90 and district before proceeding.
found that no evidence or precedent would
allow the court to find that such negotiations
constitute an abuse of discretion. Teresa G. Santin is an Associate at
Ultimately, a public entity is well within Brouse McDowell LPA practicing
its rights when it refuses to negotiate after primarily in the area of construction
it has issued an award. To avoid a protest and real estate litigation, both in OVER 25 YEARS OF
from another bidder or a taxpayer, this is the commercial and residential contexts. PERSONAL INJURY,
safest route. It also avoids the appearance of She represents owners, developers, public entities, MEDICAL MALPRACTICE,
favoritism or other impropriety. Moreover, bid and contractors in disputes involving breach of AND AUTO / TRUCKING
bonds give the public entity some recourse if contract, negligence, fraud, misrepresentation, and CASES
the contractor refuses to sign the agreement other related issues. Representative matters include
following the award. And, performance and disputes over construction agreements, mechanic’s
payment bonds protect public entities from liens, lease agreements, franchise agreements, zoning 216.223.7535
losses accruing due to a contractor’s default appeals, and property tax appeals. She has been a
and operate to incentivize contractors to CMBA member since 2016. She can be reached at ROBENALTLAW.COM
perform their contractual obligations. Keeping (216) 456-3858 or tsantin@brouse.com.

REAL ESTATE TRANSACTIONS ARE AS DIVERSE AS THE MANY
ORGANIZATIONS & INDUSTRIES DOING BUSINESS IN NORTHEAST OHIO.

KJK’s Real Estate Practice Group engages in a comprehensive practice representing a wide array
of clients in residential, commercial and industrial real estate projects and transactions. Our team
provides guidance at every stage of the process. Additionally, drawing on our broad experience with
economic incentives and Opportunity Zones, we help our clients stretch their dollars further and
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OCTOBER 2019 CLEVELAND METROPOLITAN BAR JOURNAL | 19