Do Minnesota Municipalities Have the Authority to Source Public Works Contracts Using the Construction Manager at Risk Delivery Method?

by Dorsey & Whitney LLP
Contact

Dorsey & Whitney LLP

OVERVIEW

    Recently, at least two experienced attorneys, one who represents contractors and the other who primarily represents public authorities, have published position papers opining whether Minnesota municipalities have the power and authority to use the Construction Manager at Risk (CMAR) contract delivery method when awarding construction contracts. The contractors’ attorney’s position is that public authorities cannot award a public works contract using the CMAR delivery method; the municipal attorney has taken the position that public authorities can award a public contract using the CMAR method. Who is right?

    After studying the applicable statutes and legislative history, we believe state and local public authorities in Minnesota likely have the legal discretion to use best value sourcing to award construction contracts that use the CMAR delivery method. Minnesota’s Municipal Contracting Law applies directly to counties, towns, cities, school districts, and “other municipal corporation[s] or political subdivision[s] of the state authorized by law to enter into contracts.” Minn. Stat.
§ 471.345. The Municipal Contracting Law authorizes non-State public authorities (municipalities) to use the best value procurement option set forth in Minnesota Statutes §16C.28, subd. 1(a)(2) and 1(c). See Minn. Stat. § 471.345, subds. 3a and 4a. Chapter 16C is the State Contracting Law and normally applies only to the State and its agencies, but the carve outs in Section 471.345 and other statutes allow municipalities to also use best value award processes in lieu of awarding construction contracts to the lowest responsible bidder. Neither Sections 471.345 nor 16C.28 limit—or even address—the use of the various types of construction contract forms or project delivery methods that fall within the purview of best value. Section 471.345, subds. 3a and 4a, sets forth the specific provisions in Section 16C.28 that public authorities must follow when they award any construction contract using the best value process. Importantly, the best value law applies to “all construction contracts.”

     Based on this construct, our understanding is that the Minnesota League of Cities (the “League”) advises its member cities that the best value carve outs in Section 471.345 expressly authorize municipalities to use the best value process set forth in Section 16C.28, subd. 1(a)(2) and 1(c) when awarding construction contracts, regardless of the type of construction contract form or the project delivery method. There is no dispute that CMAR is a type of construction contract. Accordingly, it makes sense that the League has taken the position that a CMAR contract is allowed under Minnesota’s best value law. The League’s position is supported by the statutes’ plain language and legislative history.

    That said, to date, we are unaware of any Minnesota district or appellate court case where a disgruntled proposer or concerned tax payer has challenged a municipality’s best value sourcing of a Minnesota public construction contract where the public authority used the CMAR delivery method. Accordingly, a Minnesota court has not yet weighed in on whether municipalities have the authority under Section 471.345 to source public contracts using the CMAR delivery method. If Minnesota courts are asked to decide the issue, they will obviously analyze the applicable statutes and, if necessary, review the legislative history supporting the 2007 amendments to, among other statutes, Minnesota Statute Sections 471.345 and 16C.28. Based on the above, we believe a court would conclude Minnesota municipalities have the authority to source public contracts using the CMAR delivery method.

DISCUSSION

I. Minnesota Statutes Support Municipalities Using Their Best Value Contracting Authority to Source a Construction Project Using CMAR.

    Minnesota’s Municipal Contracting Law allows municipalities to use the best value selection award process for construction contracts over $25,000. Minn. Stat. § 471.345, subds. 3a and 4a. Specifically, Subdivision 3a applies to construction contracts more than $100,000 and provides that “[a]s an alternative to the procurement method described in subdivision 3, municipalities may award a contract for construction, alteration, repair, or maintenance work to the vendor or contractor offering the best value under a request for proposals as described in section 16C.28, subdivision 1, paragraph (a), clause (2), and paragraph (c).” Subdivision 4a contains nearly identical language, but its application is limited to public contracts between $25,001-$99,999.99.

     Best value procurement is a means of sourcing a contractor or vendor. Its focus is on the overall value of a contract, rather than just the lowest price responsible bidder. Best value is not a construction delivery method. “Best value procurement knows no boundaries when it comes to the method of project delivery.” Best Value Procurement: Lessons Learned, p. 26, REGENTS OF THE UNIVERSITY OF MINNESOTA (2009). Stated differently, Minnesota’s best value laws contain no limitation on the type of contract or construction delivery method that public authorities can use to deliver their construction projects. 

     Notably, there are many different types of construction contracts (e.g., lump sum, unit price, cost plus percentage of cost, cost plus fixed fee, cost plus fee plus profit sharing, cost plus sliding fee, guaranteed maximum price (GMP), Engineering Procurement Construction (EPC), Construction Manager Agency (CMA), Design-Build, CMAR, and others). The numerous types of construction contract forms can be assigned to two broad categories: price given in advance contracts (price-based contracts) and cost reimbursement contracts (cost-based contracts). Price-based contracts fit within the lowest responsible bidder framework. In contrast, cost-based contracts fit within the best value framework.

    Accordingly, if a municipality exercises its best value authority under Sections 471.345, subds. 3a or 4a, and follows the applicable statutory requirements set forth in Section 16C.28, there is no law that expressly prohibits the municipality from sourcing a construction project using any type of contract form or delivery method, including CMAR.

     In sum, an entity that agrees to a CMAR delivery method is committing to act as a construction manager and deliver the project within a GMP and by a specified time. The construction manager provides professional services and acts as a consultant to the owner in both the design and construction phases of the project, and may also perform some of the construction itself. The construction manager thus is responsible to manage and control construction costs to come in under the GMP.

    Turning back then to Minnesota’s statutory scheme, which allows municipalities to utilize a CMAR delivery method in a best value framework, Minnesota’s Municipal Contracting Law expressly incorporates pertinent provisions from the State’s Best Value statute, Section 16C.28. The Best Value statute sets forth the legal parameters for the state’s award of construction contracts using the best value procurement method:

(a) All state building and construction contracts entered into by or under the supervision of the commissioner or an agency for which competitive bids or proposals are required may be awarded to either of the following: …

(2) the vendor or contractor offering the best value, taking into account the specifications of the request for proposals, the price and performance criteria as set forth in subdivision 1b, and described in the solicitation document. …

(c) When using the procurement process described in subdivision 1, paragraph (a), clause (2), the solicitation document must state the relative weight of price and other selection criteria. The award must be made to the vendor or contractor offering the best value applying the weighted selection criteria. If an interview of the vendor’s or contractor’s personnel is one of the selection criteria, the relative weight of the interview shall be stated in the solicitation document and applied accordingly.

Minn. Stat. § 16C.28, subd. 1(a)(2) and 1(c) (emphasis added). And, under the Municipal Contracting Law, those parameters and permissions also apply to municipalities. Minn. Stat. § 471.345, subds. 3a and 4a.Under Chapter 16C, and for the purposes of construction contracts, “best value” is defined as a procurement method that considers price and other criteria. Minn. Stat. § 16C.28, subd. 1b(1)-(9). Because the statute expressly applies to “all” construction contracts, it makes sense that there is no list of the types of allowable construction contract forms or delivery methods. Further, there is no requirement that the public authority wait to source a best value construction project until the project is completely designed or it knows the full price of the project; rather, the requirement is that the public authority must consider performance and price, in part, as part of its best value award process. Minn. Stat. § 16C.28, subd. 1b. While the Legislature requires public authorities to consider price when sourcing best value contracts, the statute does not define price or provide any framework for complying with the requirement. See generally Minn. Stat. §§ 16C.02 (“Definitions”); 16C.28, subd. 1b (“Best value; definition”); or 16C.32 (“Design-build contracts, Definitions”); and 471.345.

II. The League Advises Its Member Cities That Their Best Value Authority Includes Contract Awards Using CMAR.

    Public authorities, including cities, counties, public entities, and corporations in Minnesota can award contracts based on a best value selection process. See Minn. Stat. §§ 412.311, subd. 2; 429.041, subd. 2a; 469.015, subd. 1a; 469.101, subd. 5a; and 471.345, subds. 3a, 4a, and 5. Attorneys representing League members advise Minnesota cities that they have discretion to use best value to source construction projects using the CMAR delivery method. While we are aware that some municipalities are initially entering into Construction Manager Agency contracts and then subsequently converting those contracts to CMAR contracts, we believe the better procurement practice is to award a CMAR contract from the start, ensuring the contract is competitively let in accordance with the best value criteria set forth in Minn. Stat.
§ 16C.28.

The League’s Handbook for Minnesota Cities provides:

Best value provides an alternative to the competitive bidding process for contracts for construction, building, alteration, improvement, or repair work. A city may award this type of contract to the vendor or contractor offering the best value through the request for proposals process set forth in state law.

* * * * * * * * * * * * *

[a] city’s request for proposal (RFP) must set forth the criteria to evaluate best value contracting. The RFP also must state the relative weight assigned to price, as well as to other selection criteria.

LMC Handbook, Chapter 22, pp. 26-27.

    As required by Minn. Stat. § 16C.28, the League sponsors training for its member cities on how to source contracts using the best value award method. Attorneys who conduct the training focus part of the session on CMAR contracts. Moreover, several Minnesota cities and counties that have participated in the training have used the best value selection process to award CMAR contracts (e.g.,City of Eagan and St. Louis County). As discussed, we are not aware of any legal challenge to those awards.

III. The History of Minnesota’s Best Value Law and Its Incorporation Into § 471.345 (and other Statutes) Confirms the Legislature Intended Non-State Public Authorities to Have the Discretion to Use the CMAR Delivery Method.

    In 2007, the Minnesota Legislature amended Chapter 16C to authorize the State and its agencies to award construction contracts using either the lowest responsible bidder or the best value methods. 2007 Minnesota Session Laws, Chapter 148-H.F. No. 548. Today, the best value legal framework and parameters for construction contracts is set forth in Minn. Stat. 16C.28. Importantly, at the same time it authorized the State to award construction contracts using best value contracting, the Legislature amended several other procurement statutes, including Section 471.345, to allow non-State corporations and entities and Minnesota cities and counties to use best value contracting. Minn. Stat.

    Two years earlier, in 2005, the Legislature had granted limited authority to the State and its agencies to use design-build and the CMAR delivery methods when awarding State construction contracts. 2005 Minnesota Session Laws, Chapter 78-S.F. No. 1335. Today, the design-build and CMAR statutes that expressly apply to the State and its agencies are set forth in Minnesota Statutes Section 16C.33 and .34, respectively. Notably, in 2001, the Legislature authorized MnDOT to source construction contracts using the design-build delivery method. In 2002, the Legislature authorized the Department of Administration, the University of Minnesota, and MnSCU to source construction projects funded in the 2002 bonding bill using the design-build delivery method. The Legislature later authorized these public entities’ to use design-build beyond 2002. Likewise, in 2002, the Legislature authorized Hennepin County to source construction contracts using the design-build delivery method. Minn. Stat. § 383B.158. Subsequently, municipalities and other public authorities in Minnesota clamored for the legal authority to use non-traditional delivery methods, including design-build and CMAR. The State and its agencies, in turn, wanted discretion to award all construction contracts using the lowest responsible bidder or best value procurement systems, regardless of project delivery method. Other public authorities in the State supported this effort, as did certain industry groups. Thus, in 2007, State lawmakers introduced, considered, and enacted best value legislation that authorized State and non-State public authorities to award all construction contracts using a competitive bidding or best value procurement process. See Sections 16C.28 and 471.345.

    To determine whether the Legislature and proponents of the best value contracting law intended the amendments to allow best value sourcing of construction contracts to include the CMAR delivery method, we studied the legislative history of amendments to Chapter 16C and Section 471.345. Our research included listening to audio recordings from the hearings where legislators debated the bill and interested industry representatives testified. Our review revealed that the history of the best value amendments is consistent with our interpretation of the plain language of the statute, i.e., non-State agencies have the authority to use a best value procurement process to award any type of construction contract, including CMAR, provided the procurement process follows the framework set forth in the Best Value statute.

A summary of our findings and observations are set forth below.

1. Legislative History: Price

– The general purpose of the best value statute is to encourage consideration of “value” generally, and seek the “best overall performance over the cheapest price up-front.” State and Local Government Operations and Oversight Committee Hearing (Mar. 26, 2007) (Senator Metzen, bill author). This suggests that full price is not required for best value contracting.

– The overarching concern expressed in the legislative hearings was the subjectivity involved in selecting a best value contractor. The Legislature’s inclusion of price as a consideration when using best value was done to retain an element of objectivity. But there was no explicit discussion of the price requirement.

– The inclination of those testifying in support of the best value amendment and its application to non-State entities was to make clear that so long as the entity requesting best value proposals to source a construction contract could state relative weight of price in general, the lack of a hard-bottom-line number would not foreclose the possibility of using design-build, CMAR, or some other contract or project delivery method.

2. Legislative History: Best Value and Project Delivery Methods

    The legislative hearings suggest strongly that best value contracting includes projects delivered by the design-build and CMAR methods. Significantly, advocates of best value contracting relied heavily on the success the University of Minnesota and Department of Administration had in using design-build and CMAR contracts after Section 16C.33-34 provided those entities the option to use alternative procurement methods.

○ The University conducted 27 pilot projects using both the design-build and CMAR methods; projects came in on average at thirteen-percent below budget.

○ Mike Perkins, University of Minnesota, Local Government and Metropolitan Affairs Committee Hearing (Feb. 28, 2007): The University has been using best value for over a year and a half, including design- build and CMAR projects. The best value statute would “expand” considerations for CMAR contracting and provide more guidance for that process. (Emphasis ours.)

Specific testimony supporting the proposition that best value encompasses CMAR and other delivery methods such as design-build provides further support that the Legislature did not intend to limit best value sourcing to specific types of contracts or delivery methods.

○ Rich Miller, Construction Trades Council, Local Government and Metropolitan Affairs Committee Hearing (Feb. 28, 2007): best valuedoes not require a specific procurement system.” (Emphasis ours.)

○ Rich Miller, Construction Trades Council, State and Local Government Operations and Oversight Committee Hearing (Mar. 1, 2007): Design- build, CMAR, and job-order contracting are variations of best value contracting.

○ Representative Hilstrom, Commerce and Labor Committee Hearing (Mar. 13, 2007): The University already has the authority “to do this” (discussing best value contracting, through use of design-build and CMAR).

○ Rich Miller, Construction Trades Council, Governmental Operations, Reform, Technology and Elections Committee Hearing (Mar. 20, 2007): Other bills providing the Department of Administration with the ability to use different contracting methods in the past (design-build/CMAR/job- order); these are “similar tools.”

    Indeed, the Minnesota Commissioner of Administration, the person charged with establishing procedures for developing and awarding best value requests for proposals for State construction projects, has identified those documents as “Construction Best Value Procedures.” And those best value procedures include sourcing projects using the CMAR delivery method.

    The 2007 amendments to add the term “proposal” in addition to the term “bid” in Minn. Stat. § 16C.28 is telling. A request for proposals, as opposed to an invitation for bids, allows a public authority to solicit proposals to achieve best value considerations, even when the full terms of the contract or the design of the project is not entirely known. This scenario completely aligns with the CMAR delivery method. Indeed, one of the hallmarks of the CMAR delivery method is that construction may start before design completion (commonly referred to as “fast-tracking”), which, in turn, reduces the project schedule.

    In practice, public authorities use best value to source construction contracts “to match the best qualified contractor to the project, thereby reducing the owner’s risk and increasing the value received.” Best Value Procurement: Lessons Learned, p. 3, REGENTS OF THE UNIVERSITY OF MINNESOTA (2009). This broad discretion and flexibility makes sense because value considerations can—and frequently do—include specific diversity goals for a project. Unfortunately, when public authorities award construction contracts to the lowest responsible bidder using the traditional design-bid-build delivery method, the low bidder frequently falls short of the public authority’s goal for diversity hiring for the project. For example, a recent March 29, 2017 MINNEAPOLIS STARTRIBUNE article entitled “Diversity in hiring falls short of goals for public construction projects,” discusses the challenges public authorities encounter when they award public construction contracts. “Contractors don’t have to meet the goals to win bids—there’s wiggle room for those that come up short but demonstrate ‘good faith efforts’ in their hiring,” according to Velma Korbel, director of the Minneapolis Department of Civil Rights. One of the many advantages of using best value sourcing and the CMAR delivery method is an experienced CMAR contractor can help position the project so it meets or exceeds diversity goals.

    That said, regardless of the contract type or project delivery method, cost realism should always play an important part in public authorities’ source selections. This means that although the statute does not require the public authority to issue an RFP requiring all proposals to include a total (or guaranteed) price for the construction of the project at the outset of the initial award for preconstruction services, price criteria is always a consideration. For a CMAR contract, pricing criteria commonly considered by a public authority includes: preconstruction fee, construction fee, at-risk fee, general conditions, and contingency. In most cases, the parties will agree to a guaranteed maximum price (GMP) later in the design process.

    The best value alternative available to municipalities, as set forth in Section 471.345, is not without important safeguards. To avoid favoritism, and to include transparency in the process, Minnesota’s best value law includes two important safety measures. Significantly, the solicitation document must state the “criteria to be used to evaluate the proposals,” and the “relative weight of price and other selection criteria.” The award must be evaluated “in an open and competitive manner,” and must be made to the vendor or contractor offering the best value applying the weighted selection criteria.” These measures are intended to reduce potential abuses by forbidding post-bid changes to the weighting schedule identified in the solicitation document. Further, full disclosure of all criteria and sub-criteria and their weighted ranking provides a standard of objectivity in a process that will include the subjective evaluation of contractor proposals.

CONCLUSION

    CMAR is a proper best value contracting method when a municipality’s request for proposal explicitly lists price considerations and states the relative weight that will be given to each selection criteria. CMAR complies with the requirements of the best value alternative set forth in Section 471.345, subds. 3a and 4a, and fits under both the letter and spirit of the best value legislation.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Dorsey & Whitney LLP | Attorney Advertising

Written by:

Dorsey & Whitney LLP
Contact
more
less

Dorsey & Whitney LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide

JD Supra Privacy Policy

Updated: May 25, 2018:

JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.

This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at www.jdsupra.com) (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.

Please note that if you subscribe to one of our Services, you can make choices about how we collect, use and share your information through our Privacy Center under the "My Account" dashboard (available if you are logged into your JD Supra account).

Collection of Information

Registration Information. When you register with JD Supra for our Website and Services, either as an author or as a subscriber, you will be asked to provide identifying information to create your JD Supra account ("Registration Data"), such as your:

  • Email
  • First Name
  • Last Name
  • Company Name
  • Company Industry
  • Title
  • Country

Other Information: We also collect other information you may voluntarily provide. This may include content you provide for publication. We may also receive your communications with others through our Website and Services (such as contacting an author through our Website) or communications directly with us (such as through email, feedback or other forms or social media). If you are a subscribed user, we will also collect your user preferences, such as the types of articles you would like to read.

Information from third parties (such as, from your employer or LinkedIn): We may also receive information about you from third party sources. For example, your employer may provide your information to us, such as in connection with an article submitted by your employer for publication. If you choose to use LinkedIn to subscribe to our Website and Services, we also collect information related to your LinkedIn account and profile.

Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

How do we use this information?

We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

  • Operate our Website and Services and publish content;
  • Distribute content to you in accordance with your preferences as well as to provide other notifications to you (for example, updates about our policies and terms);
  • Measure readership and usage of the Website and Services;
  • Communicate with you regarding your questions and requests;
  • Authenticate users and to provide for the safety and security of our Website and Services;
  • Conduct research and similar activities to improve our Website and Services; and
  • Comply with our legal and regulatory responsibilities and to enforce our rights.

How is your information shared?

  • Content and other public information (such as an author profile) is shared on our Website and Services, including via email digests and social media feeds, and is accessible to the general public.
  • If you choose to use our Website and Services to communicate directly with a company or individual, such communication may be shared accordingly.
  • Readership information is provided to publishing law firms and authors of content to give them insight into their readership and to help them to improve their content.
  • Our Website may offer you the opportunity to share information through our Website, such as through Facebook's "Like" or Twitter's "Tweet" button. We offer this functionality to help generate interest in our Website and content and to permit you to recommend content to your contacts. You should be aware that sharing through such functionality may result in information being collected by the applicable social media network and possibly being made publicly available (for example, through a search engine). Any such information collection would be subject to such third party social media network's privacy policy.
  • Your information may also be shared to parties who support our business, such as professional advisors as well as web-hosting providers, analytics providers and other information technology providers.
  • Any court, governmental authority, law enforcement agency or other third party where we believe disclosure is necessary to comply with a legal or regulatory obligation, or otherwise to protect our rights, the rights of any third party or individuals' personal safety, or to detect, prevent, or otherwise address fraud, security or safety issues.
  • To our affiliated entities and in connection with the sale, assignment or other transfer of our company or our business.

How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at privacy@jdsupra.com.

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to privacy@jdsupra.com. We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to privacy@jdsupra.com.

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at: privacy@jdsupra.com.

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at www.jdsupra.com) (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit legal.hubspot.com/privacy-policy.
  • New Relic - For more information on New Relic cookies, please visit www.newrelic.com/privacy.
  • Google Analytics - For more information on Google Analytics cookies, visit www.google.com/policies. To opt-out of being tracked by Google Analytics across all websites visit http://tools.google.com/dlpage/gaoptout. This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit http://www.aboutcookies.org which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at: privacy@jdsupra.com.

- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.