E-Commerce and the Construction Industry: User Viewpoints, New Concerns, Legal Updates on Project Web Sites, Online Bidding and Web-Based Purchasing


December 22, 2003

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(This paper first was presented to Committee T of the International Bar Association on September 16, 2003, in San Francisco.)

By Paul W. Berning
Thelen LLP

INTRODUCTION

By mid-2002, many of the e-commerce enterprises formed to serve the construction industry had been forced to close. 1/ Considering the widespread failure of these companies, construction professionals now may ask whether the technology offered by the casualties failed as well.

At issue are the utility and viability of three major areas of technology: (1) project management Web sites through which construction projects can be centrally managed in a paperless format; (2) online bidding tools through which owners can solicit paperless project bids; and (3) online purchasing and sales of construction materials and equipment. Each of these areas, like the Internet itself, began with promises of greater efficiency, more accountability and faster speeds. This paper will consider whether those promises have been met and will examine the legal dangers that users of the technologies have encountered.

Despite the shakeout in providers, online construction services are gaining important footholds in the industry and getting positive reviews. The shakeout seems to be more a consolidation than a death rattle, and the survivors seem to have grown stronger. While online purchasing services have not caught on, project Web sites and online bidding are growing in popularity.

Online construction services, however, present perils that are not always obvious. The technology is largely unregulated, leaving the allocation of risk, responsibility and liability to negotiations at contract formation. Further, the security of information transferred through these online systems and the reliability of the systems themselves persist as concerns for those who would entrust their projects to the technology.

Besides these long-standing issues, new concerns have arisen in the last few years. While the industry consolidation has been a boon for the survivors, it has put at risk contractors and owners that entrusted their projects to one of the failed ventures. Use of online bidding technology to conduct “reverse auctions,” some say, has begun a battle for the very soul of the construction industry. And, for those few contractors making online purchases, what they see on the computer screen may not always be what they get. 2/

Although they have not yet been widely accepted in the construction industry, project Web sites continue to grow in popularity. Their promises of greater efficiency and accountability are in large measure being realized. The chief information officer of one construction company, after using a project Web site for 18 months, hailed the technology as the “wave of the future.” 3/ The technology continues, however, to encounter concerns above lack of software standards, capacity to handle larger projects and security. 4/

Industry response to project Web sites generally has been positive. A recent review in Cost Engineering suggested that the potential benefits of project Web sites include:

• "Reduced project costs and time savings by allowing large volumes of information associated with any project to be instantly accessed by members of the project team.
  
  
• “Improved productivity and partnerships since all project communications can take place in one location, the project Web site, without requiring the participants to be present at one place at the same time.
  
  
• “Immediate and easy access to meeting notes, specifications, shop drawing submittal logs, requests for information (RFIs), and site photos.
  
  
• “A forum for real time collaborative work, with participants in remote locations sharing and modifying images and other data.
  
  
• “More effective communications and collaborations among team members, who are also better informed.” 5/

In particular, project Web sites have been praised for improving the ability of general contractors “to track, monitor and control the myriad details involved in the typical... construction project.” 6/ The project Web sites have been credited with “foster[ing] a greater sense of accountability among team members, partly because everyone else has a record of who is doing what.” 7/ One such Web site provider, BuildPoint, describes itself as a “cost-effective risk management solution” that “enables general contractors to easily monitor the performance of the various subcontractors to whom they award contracts.” 8/ One general contractor who used the technology praised its ability to identify “bad subcontractors” and also to have a “positive impact for... top performing subcontractors [who will] be identified and selected for more projects.” 9/

e-Builder, a provider of project Web sites, recently conducted a survey about such sites. The survey found that use of the technology: (1) reduced communications costs by 20 to 60 percent; (2) saved companies about $1,000 a month; (3) reduced the need for site visits by 10 to 50 percent; (4) increased employee productivity by as much as 75 percent; and (5) decreased time spent on administrative matters by 30 percent. 10/

The Technology Has Not Caught On Yet. Despite a generally positive reception, project Web site technology has not enjoyed widespread acceptance. One industry review divided the construction world between the “innovators” and the “pragmatists.” While the former readily accept new technologies such as project Web sites, the latter need to know that the technology can benefit them before they will implement it. 11/ Another commentator explained the industry’s tepid embrace of the technology as “generational,” with older and established contractors resisting new methods while “newer users not only embrace the technology but expect it.” 12/ It has been posited, however, that use of project Web sites will increase if further research documents savings and efficiencies. 13/

Slow Internet Speeds and Technological Impediments. The individual user’s Internet connection (T1 line, dial-up modem, DSL or cable) and the resulting speed of Internet connectivity are concerns for project Web site users. Some users have complained of difficulties in accessing their project’s Web site during periods of heavy Internet traffic. 14/ Inability to connect to the site can be serious, delaying, for example, the posting of RFIs that require immediate dissemination. 15/ Even if contractors do make costly investments in technology, such as T1 lines, those devices are not immune to periodic failures. 16/ The need for continuous access to the project Web site may require backup Web connections. 17/

Lack of Project Web Site Standards. Even those who have embraced project Web sites acknowledge the difficulties resulting from the lack of standards for project Web site software. On one project, a general contractor and a program manager, whose jobsite trailers were less than 100 feet apart, were unable to collaborate online because each used different project management software. 18/ Even on projects where all but one or two parties use the same project Web site, all are forced to employ traditional methods of communication (faxes, e-mails, hand-delivered documents) in order to keep the non-users in the loop, resulting in substantial duplication of effort . 19/

The lack of project Web site standards breeds differing preferences among users, creating a new issue to be addressed when the construction contract is formed: Which party chooses the project Web site for the job. While contractors, architects and engineers are key users of the technology, large owners with multiple projects also have developed preferences of their own. 20/ The CEO of e-Builder, which tailors its project Web site service to owners, even has claimed that owners are “on the top of the food chain and get the biggest benefit from the [project Web site] service.” 21/ At least on bigger projects, owners seem to be choosing the project Web site. Thus, because contractors have multiple clients, they may be expected to work on several different project Web site systems, each system requiring heavy investment not only in the system’s purchase or lease price but also in the training of employees. Such training “can be a big time commitment.” 22/

Project Web Site Capacity Is in Doubt. The very capacity of project Web sites has been questioned. Those offered by Buzzsaw and e-Builder have been criticized for being suited only for smaller jobs and as being unable to take on large construction projects with high volumes of information. 23/ While such issues may be resolved as the technology develops, owners and contractors now contemplating the use of Web sites on large projects should be aware that some technology may not be equal to their project’s demands.

Despite these concerns, the president of one project Web site company suggested that the outlook for the technology will only improve as large contractors begin to utilize it because “[t]he large contractors tend to impose how things are communicated.” 24/ One large contractor, Clayco Construction, predicted, “Eventually people will come on board [with project Web sites] because they don’t have a choice. General contractors, architects and even owners are going to start requiring it. Contractors who don’t will be left behind.” 25/

While there have been no published news reports or published appellate cases involving security breaches of project Web sites, security remains a major concern. Commentators have focused on several areas, including data transmission safety, threat of online imposters and identity theft. 26/ Technology addressing these security concerns includes “data exchange networks providing audit trails and document backup services; options for auto-acknowledging the receipt of messages; data verification checks built into messages; message encryption options; digital signatures; and digital certificates to confirm message status.” 27/ However, users of project Web sites should understand that such security features may not be standard with all project Web sites and that they must obtain them to achieve the level of security needed for their project.

Recent business closings and bankruptcies of the project Web site providers have raised a new kind of concern about the technology’s reliability. The shutdown of a project Web site company poses an obvious threat of disruption to on-going projects. It also can impact Web site users that were relying on the system to archive and maintain records for completed projects. Ready access to these records may be crucial to maintenance and continued operation of the completed project and also in legal disputes arising out of the project. Statutes of limitation of 10 years or more for latent construction defects mean that such reliability is a long-term and not a short-term issue. 28/

Events in the bankruptcy of one project Web site provider, BuildNet, have allayed some of these fears. Although BuildNet filed for Chapter 11 bankruptcy on August 8, 2001, maintenance and support for its service continued uninterrupted. BuildNet’s customer contracts were among the first assets sold off in the bankruptcy proceedings. They were acquired by rival project Web site companies, such as HomeSphere and MH2. The acquisitions reflect the market’s consolidation trend and may indicate greater stability in technical support.

But, third-party assumption of contracts is not without its perils. When a project Web site provider is chosen, it is entrusted with invaluable and perhaps irreplaceable project records. Substituting an unfamiliar service provider in mid-project certainly will be disconcerting and disruptive to project participants and could be disastrous. It is conceivable that the acquiring provider will not meet the expectations of the project team. For example, one BuildNet subsidiary, Homestyles, was acquired by Homestore.com – a company that later was convicted of violation of securities laws. 29/ If the choice of a project Web site provider was a contentious issue between the owner and contractor at contract formation and if the vendor fails, the chance of legal disputes increases.

Online bidding has grown in use if not popularity in recent years. It is being used by federal and state government agencies and by private owners. As much as owners have embraced online bidding, contractors remain concerned about the reliability of online bidding, particularly its reliability in delivering bids and doing so on time. The greatest debate, though, concerns reverse auctions, which critics claim are nothing more than “another dress on the bid-shopping mannequin.” 30/

Led by federal and state governments, online bidding has gained a substantial foothold in the construction world. By mid-September 2002, 36 states were using some form of online bidding. 31/ Arizona and Colorado enacted statutes expressly permitting state agencies to invite construction contract bids through the Internet. 32/

The most obvious beneficiaries of online bidding have been owners, which seek: (1) secure and reliable information exchanges with bidders; (2) elimination of bidding errors through system checks that root out bids with missing data; (3) receipt of bids in a consistent and formatted manner; (4) reduction in the cost of preparing and distributing bid proposals; (5) access to a larger pool of potential bidders; and (6) automatic enforcement of bid submission cut-off times. 33/

Potential benefits to contractors include: (1) 24-hour-a-day access to project information; (2) automatic error checking of bids before submission; (3) time savings in bid preparation; and (4) ease in bid submission. 34/

Some contractors have said that “online bidding comes as a relief,” noting that the technology, by making bidding possible from their own offices, saves them from having to pack up teams and office resources to travel to a bidding site. 35/ This “could trim bid prices because online bidding spares contractors from a potentially long drive, hotel bills and the price of hauling computer equipment.” 36/

Despite these promised benefits, online bidding has raised concerns, especially among contractors. In recognition of the trend toward online bidding among state departments of transportation, the U.S. Department of Transportation’s Federal Highway Administration (FHWA) issued a technical guide to simplify and provide guidance on the new technology. 37/ Among the concerns it addresses is whether project owners indeed will receive bids submitted online. Traditionally, contractors were certain that bids had been received because they were hand-delivered on paper. Online bidding involves submission of bids to the amorphous world of cyberspace, where certainty of receipt is more illusive. The FHWA guide counsels state departments of transportation to acknowledge delivery of bids “by returning a digitally signed receipt for each bid submission [that] provides the bidder with legally binding proof that the bid was received by the service at the stated time.” 38/

But legally binding receipts do not squarely meet bidders’ concerns that the online system can deliver their bids late or lose them. Untimely receipt of bids on federal contracts already has resulted in two bid protests by contractors. 39/ The protests were rejected by the Comptroller General of the United States. 40/ (Click here to read more about these two bid protests.)

The FHWA guide concedes that computer system failures are probable and are likely to be “caused during high network traffic generated by the nearness of the bid date.” 41/ FHWA suggests that state agencies use systems with “significant parallel of power, hardware, and communications lines in physically separate locations.” 42/ To avoid lost bids, FHWA recommends that state agencies use systems that keep multiple copies of submitted files and also keep data on read-only media. 43/

Because it is the bidding contractor, not the owner, that bears the brunt of a lost or late bid, contractors may find it advisable to become familiar with the quality, reliability and functionality of online bidding systems and to take these factors into account before investing time and resources in preparing a particular bid.

Some contractors also fear the loss of reliability that comes from the close personal interaction of traditional bidding methods. One general contractor expressed concern about the ability to get subcontractor bids he could trust over the Internet: “On big jobs, you need personal contact with subcontractors. You’re not going to see the whites of their eyeballs, or if they roll their eyes after giving you a number. That face to face is always worth more.” 44/

Reverse auctions have provoked a vitriolic reaction from contractors. They pit “anonymous bidders against one another in an effort to obtain the lowest price – the reverse of a typical auction in which prospective buyers bid upward. The process includes specific times for rebids and continues until bidding stops and an award is made.” 45/

Reverse auctions give owners the opportunity for lower costs, but the benefit may be illusory. While one online bidding service provider, FreeMarkets, Inc., claims that its service gives “assurances that owners are getting true market pricing,” 46/ contractors insist that reverse auctions pervert the market by initiating a “race to the bottom.” According to contractors, reverse auctions reward only those contractors willing to take the most risk. 47/ In some instances, bidding has been allowed to continue past the specified closing time – a practice that threatens to undermine prohibitions against accepting late bids. 48/ One commentator predicts that “[a]uction bidding will squeeze every living cent of profitability out of a job.” 49/

Unsuccessful bidders also have claimed that low bids were below cost, raising concerns about quality and encouraging a “gambling mentality” in the industry. 50/ If the accusations of below-cost bids are true, the practice could be a violation of unfair trade practice laws. In California, for example, “[i]t is unlawful for any person engaged in business within [California] to sell any article or product at less than the cost thereof to such vendor, or to give away any article or product, for the purpose of injuring competitors or destroying competition.” 51/ “Article or product” is defined to include “service or output of a service trade.” 52/

And while proponents claim that reverse auctions force prices to reflect the true marketplace, “owners may not be getting expected savings because, unlike sealed bids, bidders do not have to start off with their lowest bid.” 53/ And, the true market price could be artificially skewed by the participation of ineligible bidders. For example, some state agencies permit the submission of post-bid documentation to justify use of alternatives to brand name products and to establish use of good faith best efforts to secure the participation of disadvantaged business enterprises. If a winning bidder in a reverse auction later were found ineligible based upon review of its post-bid documentation, the owner likely would proceed to award the contract to the next lowest bidder. This runner-up bidder, however, might claim that its bid did not reflect the true market price because the auction had been tainted by the participation of a “non-market player” – the ultimately ineligible bidder who artificially drove down the auction bidding.

Reverse auctions also have been described as another form of bid shopping and a violation of “the good faith of construction companies who are asked to compromise their carefully calculated bids.” 54/ Many in the industry oppose the practice for treating construction as a commodity rather than as a service that is “dependent on variables such as labor and schedule.” 55/

Despite these criticisms, contractors have participated in these online bidding contests, often taking jobs at cost simply to stay in good graces with a long-standing client. 56/ For example, one contractor declined to participate in an online reverse auction conducted by a long-standing client because it “doubted that [it] could maintain the quality and service of [its] work by cutting [its] bid during the auction.” The contractor has not heard from that client since. 57/

Some commentators have suggested that reverse auctions never will catch on because of the very real threat they pose to project quality. 58/ Some insist that the race to the bottom inspired by online reverse auctions exacerbates the industry’s “reputation for lack of quality workmanship and deficient service to the customer.” 59/ If valid, these concerns mean that owners themselves ultimately will suffer when they receive a lower quality product.

Concerns about reverse auctions led Rep. Paul Kanjorski (D-Pa.) to introduce a bill in Congress to forbid them in federal government construction contracts. H.R. 1348, introduced in March 2003, would outlaw bid shopping in general and online reverse auctions in particular for federal construction projects.

Online purchasing and sales systems provide the technical means to negotiate bulk prices with, purchase hard-to-find products from and sell surplus materials and equipment to a market that transcends traditional regional boundaries. The construction industry, for the most part, has not warmed to the technology. “Contractors apparently [are not] willing to give up old business relationships with suppliers in favor of Internet efficiencies.” 60/

Despite general resistance, the federal government has developed an e-commerce marketplace called NAVICPmart for test equipment designed specifically for the military, federal agencies and their contractors. This online market -- which resembles a catalog -- allows authorized buyers to research and select test equipment products that have been pre-approved by the federal government for purchase. 61/ Federal agencies and contractors can make online purchases of pre-approved materials and equipment at pre-approved prices.

Recent litigation demonstrates some of the perils of online purchasing. A U.S. District Court enjoined one online equipment seller from making sales using part numbers identical to those of a competitor. 62/ Both online sellers were pre-approved product providers that maintained official profiles on the same Department of Defense Web site, which was used by defense contractors to purchase pre-approved construction products. Because Seller B used part numbers identical to those of Seller A, any search for Seller A’s equipment by number would bring up parts by both Seller A and Seller B. Unsuspecting contractors thus could buy products from a different supplier than they intended.

CONCLUSION

The Internet continues to change the construction industry, though not as fast and not always in the ways predicted at the height of the Internet boom. This new technology involves substantial potential legal issues, but so far few have emerged in the form of litigated controversies. As use becomes more common and more intense, legal issues -- and disputes -- are likely to emerge.

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For more information about the issues covered in this report, please contact Paul Berning in our San Francisco office at 415-369-7229 or at pwberning@thelen.com or contact your Thelen attorney. For more information about Thelen's Construction and Government Contracts Department, click here.





ENDNOTES

1/ Jerry Laiserin, The Big Picture, Collaborative Design, Cadence, p. 44 (April 1, 2002) [“Most of the project Web site startups failed.”].

2/ For an earlier overview of the legal and technical issues involved with Web-based tools for the construction industry, see Paul W. Berning and Shaye Diveley-Coyne, E-Commerce and the Construction Industry: The Revolution is Here, www.ConstructionWebLinks.com, available at:

http://www.constructionweblinks.com/Resources/
Industry_Reports__Newsletters/ Oct_2_2000/
e-commerce.htm

(October 2, 2000).

3/ Jeffrey Steele, The Construction Site, Redefined, California Construction Link, p. 33 (Oct. 2002).

4/ For an overview of the legal and practical issues involved in choosing a project Web site tool and negotiating its terms of use, see Paul W. Berning and John W. Ralls, Project Web Sites: How to Evaluate Them and How to Agree on Using Them, www.ConstructionWebLinks.com, available at:

http://www.constructionweblinks.com/Resources/
Industry_Reports__Newsletters/ May_13_2002/
project_websites.htm

(May 13, 2002).

5/ Claudia E. Villeneuve and Aminah Robinson Fayek, Construction Project Websites: Design and Implementation, Cost Engineering, vol. 45, p.26 (Jan. 2003).

6/ Ward Simpson, Integrated Communications Systems: Internet-Based Information System Provided Effective Communications and Reporting for Scottsdale’s $106 million K-12 Upgrade, School Planning and Management, vol. 42, p. 28 (May 1, 2003).

7/ Randy Southerland, An E-Blueprint for Success, National Real Estate Investor, p.8 (Aug. 2002).

8/ BuildPoint Offers the Construction Industry Its First Mass Market Subcontractor Performance Management Tool for General Contractors, Business Wire (May 8, 2002).

9/ Id.

10/ Randy Southerland, An E-Blueprint for Success, National Real Estate Investor, p.8 (Aug. 2002).

11/ Claudia E. Villeneuve and Aminah Robinson Fayek, Construction Project Websites: Design and Implementation, Cost Engineering, vol. 45, p.26 (Jan. 2003).

12/ Gianni Truzzi, Construction Made e-asy: The Internet is Changing the Way the Construction Industry Does Business, Everett (Washington) Business Journal, vol. 6, p. B3 (June 1, 2003).

13/ Neil Luter Floyd, Brick, Mortar Web Sites, The Clarion Ledger, Jackson, Mississippi, p. 1C (April 3, 2003).

14/ Amy Florence Fischbach, Team Collaborates Online to Manage Airport Renovation, Electrical Construction and Maintenance, p.11 (Nov. 2002).

15/ Id.

16/ Id.

17/ Id.

18/ Id.

19/ Id.

20/ Jeffrey Steele, The Construction Site, Redefined, California Construction Link, p. 33 (Oct. 2002) [“The problem with working with contractors, architects and engineers is, at the end of the day, they’re going to have another system dictated to them by owners. However, an owner like Office Depot can come in and say, ‘We’re doing hundreds of stores this year, and if you want to work with us, this is how it has to get done.’ ”].

21/ Id., quoting Jon Antevy, chief executive officer of e-Builder.

22/ Gianni Truzzi, Construction Made e-asy: The Internet is Changing the Way the Construction Industry Does Business, Everett (Washington) Business Journal, vol. 6, p. B3 (June 1, 2003).

23/ Id.

24/ Id.

25/ Randy Southerland, An E-Blueprint for Success, National Real Estate Investor, p.8 (Aug. 2002).

26/ Claudia E. Villeneuve and Aminah Robinson Fayek, Construction Project Websites: Design and Implementation, Cost Engineering, vol. 45, p.26 (Jan. 2003).

27/ Id.

28/ See, e.g., California Code of Civil Procedure §337.15.

29/ See In re Homestore.com Securities Litigation, 252 F. Supp. 2d 1018 (C.D. Cal. 2003).

30/ William J. Angelo, Reverse Auctions Raise Bid Shopping Concerns: Some Contractors Worry About Services Becoming Commodities, McGraw Hill Construction Industry Headlines, available at:

http://www.construction.com/NewsCenter/it/
archive/20021104apf.asp

(Nov. 4, 2002) (quoting Dan Walter, president of the Associated General Contractors).

31/ Andrew Roe, New Players Push Project Management to the Web, Engineering News-Record, vol. 249, p. 53 (Sept. 16, 2002).

32/ Arizona Revised Statutes Annotated §§41-2671, 41-2672; Colorado Revised Statutes §§24-92-104.5, 43-1-105.

33/ FHWA Assesses Internet Bidding, Concrete Products, p. 4 (April 1, 2003).

34/ Id.

35/ Jeremy Harrell, WisDOT Unveils Online Bidding, The Daily Reporter, Milwaukee, Wisconsin (Aug. 14, 2002).

36/ Id.

37/ U.S. Department of Transportation, Federal Highway Administration, Internet Bidding for Highway Construction Projects, available at:

http://www.fhwa.dot.gov/programadmin/
contracts/interbid.htm

(Nov. 15, 2002).

38/ Id. at p. 6.

39/ In the Matter of Sea Box, Inc., No. B-291056 (Oct. 31, 2002); In the Matter of PMTech, Inc., No. B-291082 (Oct. 11, 2002).

40/ Id.

41/ U.S. Department of Transportation, Federal Highway Administration, Internet Bidding for Highway Construction Projects, available at:

http://www.fhwa.dot.gov/programadmin/
contracts/interbid.htm, p. 7 (Nov. 15, 2002).

42/ Id.

43/ Id.

44/ Jeremy Harrell, WisDOT Unveils Online Bidding, The Daily Reporter, Milwaukee, Wisconsin (Aug. 14, 2002), quoting Mike Zignego, secretary-treasurer of The Zignego Companies.

45/ William J. Angelo, Reverse Auctions Raise Bid Shopping Concerns: Some Contractors Worry About Services Becoming Commodities, McGraw Hill Construction Industry Headlines, available at:

http://www.construction.com/NewsCenter/
it/archive/20021104apf.asp

(Nov. 4, 2002).

46/ Id.

47/ Jeremy Harrell, Reverse Auctions Changing Construction Industry, The Daily Reporter, Milwaukee, Wisconsin (May 9, 2002).

48/ Walter H. Lehner, Don’t Auction-Bid Contracts, Engineering News-Record, vol. 248, p. 77 (April 29, 2002).

49/ Id.

50/ William J. Angelo, Reverse Auctions Raise Bid Shopping Concerns: Some Contractors Worry About Services Becoming Commodities, McGraw Hill Construction Industry Headlines, available at:

http://www.construction.com/NewsCenter/
it/archive/20021104apf.asp

(Nov. 4, 2002);

Walter H. Lehner, Don’t Auction-Bid Contracts, Engineering News-Record, vol. 248, p. 77 (April 29, 2002).

51/ California Business and Professions Code §17043.

52/ California Business and Professions Code §17024.

53/ William J. Angelo, Reverse Auctions Raise Bid Shopping Concerns: Some Contractors Worry About Services Becoming Commodities, McGraw Hill Construction Industry Headlines, available at:

http://www.construction.com/NewsCenter/
it/archive/20021104apf.asp

(Nov. 4, 2002).

54/ Jeremy Harrell, Reverse Auctions Changing Construction Industry, The Daily Reporter, Milwaukee, Wisconsin (May 9, 2002).

55/ William J. Angelo, Reverse Auctions Raise Bid Shopping Concerns: Some Contractors Worry About Services Becoming Commodities, McGraw Hill Construction Industry Headlines, available at:

http://www.construction.com/NewsCenter/
it/archive/20021104apf.asp

(Nov. 4, 2002).

56/ Walter H. Lehner, Don’t Auction-Bid Contracts, Engineering News-Record, vol. 248, p. 77 (April 29, 2002).

57/ Id.

58/ Jeremy Harrell, Reverse Auctions Changing Construction Industry, The Daily Reporter, Milwaukee, Wisconsin (May 9, 2002).

59/ Walter H. Lehner, Don’t Auction-Bid Contracts, Engineering News-Record, vol. 248, p. 77 (April 29, 2002).

60/ David Goetz, Ironmax.com Closes, as Did 2 Other Firms, The Courier-Journal, Louisville, Kentucky, p. 14B (Nov. 2, 2001).

61/ TestMart Awarded GSA Contract; Hundreds of Products Now Available Under GSA Contract at Official Government-Sponsored Test Equipment Web Site NAVICPmart, Business Wire (Sept. 18, 2002).

62/ NAV-AIDS LTD. V. NAV-AIDS USA, 2002 WL 31687705 (N.D. Ill. 2002).

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