Bid Protests in Florida

In Florida, there is a “great public interest in ensuring that contracts be awarded to effectuate the intent of the competitive bid laws.” City of Sweetwater v. Solo Const. Corp., 823 So. 2d 798, 801 (Fla. 3d DCA 2002). Said competitive bid laws were enacted for the protection of the public and to create a system by which goods or services required by public authorities may be acquired at the lowest possible cost or best possible value to the state. The implementation of the competitive bid laws also, arguably, was done in reaction to public distrust of officials charged with spending taxpayer funds. See Harris v. School Board of Duval County, 921 So.2d 725 (Fla. 1st DCA 2006).

In contemplation of government deviation, the Florida legislation also enacted legislation allowing bidders the ability to protest the award of a government contract, or the solicitation itself. Before protesting a solicitation, it is incredibly wise to determine whether standing is an issue. While it is likely that a second-place bidder will have standing to pursue a protest, it is less likely that a fourth or fifth-ranked bidder will. The reason being that depending on what grounds the bidder is protesting under, the result of a protest would not be the bidder jumping to first-rank. However, there are scenarios where lower ranked bidders may have standing to assert a protest.

Grounds for Protesting Solicitation

There are a number of grounds a bidder can assert in protesting a solicitation. A commonly cited reason relates to bias exhibited by the agency/local government. Bias could also include undisclosed conflicts of interest by the agency/local government. Other grounds include, but are not limited to:

1) Violation of the “cone-of-silence”;

2) Violation of the Florida Sunshine Act (discussions or meetings between evaluating agency/local government employees are subject to the open government rules);

4) Selection of non-responsive bidder;

5) Considering factors outside of evaluation criteria outlined in solicitation or;

6) Arbitrary selection.

Protesting a State-Wide Solicitation

Protesting a solicitation/award from a Florida agency (includes certain agencies such as water-management districts) is governed the Administrative Procedure Act (“APA”) applies. Codified at Chapter 120, Florida Statutes, the APA requires a bidder to give its notice of intent to protest (whether the solicitation or the award) to the agency within 72 hours after the bidder receives notice of the adverse decision. Put simply, after receiving a solicitation or issuance of the notice of intent to award, a bidder has 3 days to file its intent to protest with the agency (while determined by the solicitation itself, typically this notice is served with the agency clerk or the purchasing office). See Fla. Stat. § 120.57(3). The actual formal written protest must be filed within 10 days after the date the notice of protest is filed. Of significant note, failure to file either the notice of protest or the formal written protest constitutes a waiver of the bidders right to protest.

Once in receipt of the formal written protest, the agency is required to stop its competitive bidding protest/awarding the contract until the protest is resolved. The exception to this requirement occurs where the agency indicates (setting forth particular facts and circumstances) that delay will result in immediate and serious danger to the public health, safety, or welfare.

The APA provides that the agency is required to provide the protester an opportunity to resolve the protest by mutual agreement within 7 days. If not resolved, the protest will either be heard via informal hearing or formal hearing. For context, a formal hearing involves an administrative law judge (“ALJ”) (this will occur at the Department of Administrative Hearings) and involves issues of material fact, while an information hearing is conducted by an informal hearing officer within the agency and does not involve issues of material fact.

Once a final order is rendered by either the informal hearing officer or the ALJ, the protester may appeal the decision directly to a District Court of Appeals.

Protesting a Local Solicitation

While state-agencies are governed by the APA uniformly, local governments are generally governed by their own ordinances and regulations. First and foremost, local governments are not required to competitively bid in all instances. See Fla. Stat. § 255.20 (requiring counties, cities, and special districts to competitively award projects exceeding $300,000, with certain exceptions).

Most, if not all bid protest procedures for local governments will be contained in the applicable ordinances or charter. Generally, these regulations commonly vary by jurisdiction.

Conclusion

Due to a variety of factors and speedy deadlines, it is incredibly wise to consult with an attorney prior to the initiation of a bid protest.

Matt Margolis, Esq. is an attorney at Shapiro Blasi Wasserman & Hermann. To contact Mr. Margolis directly, please email him at [email protected].

* The information provided in this article does not, and is not intended to, constitute legal advice; instead, all information and content, and available in this article are for general informational purposes only. Readers of this article should contact their attorney to obtain advice with respect to any particular legal matter. No reader, user, or browser of this article should act or refrain from acting on the basis of information on this site without first seeking legal advice from counsel in the relevant jurisdiction. Only your individual attorney can provide assurances that the information contained herein – and your interpretation of it – is applicable or appropriate to your particular situation. Use of, and access to, this article or does not create an attorney-client relationship between the reader, user, or browser and author. The views expressed at, or through, this site are those of the individual authors writing in their individual capacities only – not those of their respective employers. All liability with respect to actions taken or not taken based on the contents of this article are hereby expressly disclaimed. The content on this posting is provided "as is;" no representations are made that the content is error-free.