KNOW YOUR BID PROTEST RIGHTS

imagesIf you are a contractor that works on Florida public construction projects, then you understand that public projects are competitively solicited through a procurement method such as an invitation to bid, a request for proposals, or invitation to negotiate.  Irrespective of the procurement method, a disappointed bidder (a bidder that was not awarded the contract for the project) may look to protest the award of the contract.  Typically, the disappointed bidder is the second lowest bidder or a bidder that was deemed non-responsive or non-responsible by the public agency.  The argument is that (a) but for the award of the contract to the awardee (which the public agency should have deemed a non-responsive or non-responsible bidder), the contract would be awarded to the disappointed bidder or (b) but for the disappointed bidder being deemed improperly non-responsive or non-responsible, the contract would be awarded to it.  Regardless of the argument, the disappointed bidder must be responsive to the solicitation and be in a position to actually be awarded the contract; otherwise, its protest will be for naught as it will not have standing to bring the protest in that it will not be deemed adversely affected by the agency’s decision.

 

Bid protests for Florida state agencies are governed under the Administrative Procedures Act: Florida Statute s. 120.57(3).   This statutory section should be set forth in the solicitation and the public agency’s notice of intent to award the contract. (Local public agencies may have their own bid protest procedures in their local codes or ordinances that describe the procedure to protest the award of a solicitation.  The code or ordinance section governing the bid protest procedure will be in the solicitation and/or the notice of intent to award the contract for the project.)

 

Regarding bid protests governed under Florida Statute s. 120.57(3) for construction projects solicited by Florida state agencies, here are bullet points to remember:

 

  • The agency will post its notice of intended decision concerning the solicitation- this will usually be the notice that the agency is awarding the contract to a particular bidder.

 

  • A contractor adversely affected by the agency’s decision (i.e., the disappointed bidder) must file a notice of protest within 72 hours after the agency posts its notice of intended decision (exclusive of Saturdays, Sundays, and state holidays).  Failure to timely file this notice of protest will constitute a waiver of the disappointed bidder’s right to protest.

 

  • The disappointed bidder must then file its formal bid protest petition within 10 days after its notice of protest is filed.  This formal petition states the disappointed bidder’s factual and legal basis supporting its protest.  Failure to timely file this formal petition will constitute a waiver of the disappointed bidder’s right to protest.

 

  • When the agency timely receives both the notice of protest and formal protest petition, it must stop the contract award process (meaning it cannot execute any contract) until the protest gets resolved (absent circumstances to avoid immediate and serious danger to the public).

 

  • Within 7 days of the timely petition to protest (exclusive of Saturdays, Sundays, and state holidays), the agency shall provide an opportunity to resolve the protest by mutual agreement.  If the protest does not get resolved, the agency needs to determine whether there are disputed issues of material fact.

 

  • If there is NO disputed issue of material fact, an informal proceeding shall occur within the agency where the agency will enter a decision regarding the bid protest.

 

  • If there is a disputed issue of material fact, the agency must refer the protest to Florida’s Division of Administrative Hearings (referred to as DOAH) for a formal proceeding; a bid protest hearing will then be conducted in front of an administrative law judge.  The administrative law judge will enter a recommended order regarding the bid protest that the parties will be able to take written exceptions to.  The agency will then enter a final order regarding the protest (which oftentimes is aligned with the administrative law judge’s recommended order).

 

There are numerous nuances regarding bid protests inclusive of arguments forming the basis of the protest so it is important to know your rights, whether submitting a bid on a Florida state public project or a local government public project.  Once bid opening occurs or there is an indication as to who the public agency will award the contract to, the disappointed bidder should serve a public records request (ideally, in person or by e-mail) to get an immediate copy of the anticipated contract awardee’s bid / proposal and, if applicable, any committee notes surrounding the award.  This way the disappointed bidder can see whether there is any legitimate protest basis.

 

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

 

 

 

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