shutterstock_1088217212Deference will be given to a procuring public agency in a bid protest, particularly when the issue involves whether a bid is non-responsive and constitutes a material deviation from the solicitation.  You do not believe me? Perhaps you will after this holding in Biscayne Marine Partners, LLC v. City of Miami, Florida, 44 Fla.L.Weekly D467a (Fla. 3d DCA 2019):


Consequently, no principle of law is clearly established…as to any obligation of the trial court (and, by analogy, an administrative hearing officer) [in a bid protest] to decide or to defer [whether a bid constitutes a material deviation from the solicitation]. If anything, the existing and clearly established principle of law inclines toward judicial deference in public agency competitive bidding disputes when the agency has exercised it discretion absent illegality, fraud, oppression or misconduct.



I do not know about you, but that last underlined sentence is pretty strong language regarding judicial deference!


In this case, Miami (the procuring public agency) issued a Request for Proposals (RFP) for the redevelopment and lease of waterfront property, for the operation of a marina, boatyard, restaurant, wet slips, and a dry storage facility on the property.  Miami issued five addenda to the RFP.  There were three bidders. 


On a boundary survey attached to the RFP applicable to the redevelopment, there was a rectangular location designated “Not a Part.” All three bidders made some use of the location designated “Not a Part” in their proposals.  Apparently, there was nothing specific as to what this “Not a Part” meant; it could have reasonably meant it was not included in the boundary survey or it could have reasonably meant it was not to be included for purposes of redevelopment. 


Miami issued a recommendation to the top-ranked proposer based on rankings from its evaluation committee.  Another proposer filed a bid protest claiming that the top-ranked proposal should be deemed non-responsive since it proposed a redevelopment outside of the property’s defined boundaries by utilizing the location defined as “Not a Part.”  The protester claimed this constituted a material deviation from Miami’s RFP (solicitation).  


I will be the first to tell you that this is confusing since all of the proposers including the protester made some use of the location defined as “Not a Part.”  


Notwithstanding, the protest proceeded to a hearing officer pursuant to Miami’s bid protest procedures and the hearing officer claimed that even if the “Not a Part’ location in the boundary survey meant it was not allowed to be considered for the redevelopment, “the City had the ability to determine whether that made a difference to the outcome and whether the deviation was material.”  The hearing officer, in denying the protest, further accepted Miami’s interpretation that nothing in the RFP prohibited the use of the “Not a Part” location for redevelopment purposes. 


The protester then filed a petition for writ of certiorari to the appellate division of Miami-Dade’s Circuit Court.  The protester’s writ was denied, with the appellate division giving deference to Miami’s interpretation of “Not a Part” in the boundary survey.  


The protester then filed a second-tier petition of writ of certiorari to the Third District Court of Appeal.  The protester’s main argument was that neither the hearing officer nor the appellate division should have given deference to Miami.  Rather, they needed to conduct their own independent determination of the issue and whether the top-ranked proposal constituted a material deviation from the RFP.  


However, the Third District held that what the protestor wanted from an “independent determination” standpoint was not the law.  There is no law that precludes a hearing officer or appellate body in a bid protest from deferring to the procuring public agency as to whether a proposal (or bid) constitutes a material deviation from the solicitation and is, therefore, non-responsive.  To the contrary, the law would be inclined to support “judicial deference in public agency competitive bidding disputes when the agency has exercised its discretion absent illegality, fraud, oppression or misconduct.” Biscayne Marine Partners, supra


As I mentioned above, this is pretty strong language regarding deference given to a procuring public agency.  Therefore, pick your fights wisely!



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


images-1In most circumstances, public entities are required to competitively bid the construction of their projects. Sometimes, competitive bidding is as simple as the public entity publishing an Invitation To Bid (“ITB”) seeking to solicit the lowest, responsible, and responsive bidder. In this solicitation, assuming the bidder is responsible (qualified) and responsive (complies with the invitation to bid in all material respects), the public entity is seeking the lowest cost to perform the construction. The ITB process is commonly referred to as the hard bid process because the public entity knows exactly what it wants and seeks the lowest cost to construct per the plans and specifications.


However, seeking an ITB is not the only way a public entity selects a contractor to construct its project. Another common method is the public entity publishing a Request For Proposals ( “RFP”) whereby cost is a factor, but not the only factor in selecting the contractor. A RFP is typically the solicitation when the public entity wants to utilize the experience and sophistication of the contractor to help it determine what specifically it wants. In other words, the public entity wants to resolve a problem and relies on the contractor to submit proposals with the solution and the costs to implement the solution. The public entity then ranks the proposals based on scoring criteria and selects the contractor that has the preferred or highest ranking.


Contractors that participate in the public procurement process, whether through the ITB, RFP, or another approved method of procurement, can often feel frustrated with the process based on the wide latitude and discretion that are afforded to public entities in the process. This frustration is exemplified in Pensacola Builders, Inc. v. King, 36 Fla. L. Weekly D1304c (1st DCA 2011), which involved a 13 year old dispute over a public project that was not awarded to the plaintiff contractor. In this case, a public entity was soliciting a contractor to build and operate a concession stand on a pier through the RFP process. The plaintiff was the highest ranked contractor in the process and was in the process of negotiating the contract with the public entity. However, the defendant contractor that also participated in the RFP process wrote letters to the public entity threatening litigation (after apparently missing the deadline to file a bid protest) regarding the manner in which the public entity conducted the RFP. Due to the public entities apparent fear of the threatened litigation, it ceased negotiations with its highest ranked contractor, readvertised for proposals, and then ranked the defendant as its preferred contractor. This naturally was perceived as an injustice to the plaintiff.


The plaintiff filed suit against the public entity for breach of an implied covenant of fair dealing based on the public entity readvertising the proposals and selecting the defendant contractor as its preferred contractor. See Santa Rosa Island Authority v. Pensacola Beach Pier, Inc., 834 So.2d 261 (Fla. 1st DCA 2002). The plaintiff’s objective was to force the public entity to reengage in contract negotiations with it. The First District Court of Appeal shot down plaintiff’s lawsuit and objective holding, “Absent evidence of illegality, fraud, oppression, or misconduct, Appellee [plaintiff] is without a remedy for Authority’s [public entity] readvertising for proposals and rearranging the preference order of the parties.” Santa Rosa Island Authority, 834 So.2d at 263. Stated simpler, the plaintiff was out of luck as it is hard to establish the government committed a wrong, even though the public entity readvertised proposals due to threatened litigation from a bidder that apparently failed to timely protest!


The plaintiff, however, did not end its pursuit of seeking redress for what it perceived as injustice in the competitive bidding process. The plaintiff creatively asserted claims against the defendant contractor for, among other things, tortious interference with a business relationship and defamation. The plaintiff’s arguments were premised on letters that the defendant sent to the public entity when plaintiff was in the process of negotiating its contract threatening litigation due to the illegality of the RFP process and accusing plaintiff of certain illegal actions. The trial court ruled in favor of defendant on plaintiff’s claims and, unfortunately, because plaintiff did not properly preserve these issues on appeal, the First District Court of Appeal was not in a position to reverse the trial court’s ruling. (Notably, this case demonstrates the importance of preserving all issues and arguments for appeal.) However, had plaintiff preserved these issues for appeal, there may have likely been meat on the bone as to its arguments against the defendant that ultimately got the public entity not to award the contract to the plaintiff, but, instead, to defendant.


In an economy where private projects are not as booming as they once were and public projects being a main source of revenue for many contractors, bid protests and/or the threat of litigation are measures that are being strongly considered when a perceived injustice occurs in the public procurement process. Although this case did not work out well for the plaintiff, plaintiff’s arguments are still creative and worthy of merit against another bidder in a similar context that overtly hinders a contractor’s efforts in contracting with the public entity.


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