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Construction Law Authority / Procurement  / Bidders Gain an Additional Right to be Heard

Bidders Gain an Additional Right to be Heard

Florida recently expanded on its Sunshine Law by establishing that the public has the right to be heard at board or commission meetings prior to official action being taken. The Florida Legislature passed Senate Bill No. 50 (Chapter 2013-227) which requires that the public be afforded a reasonable opportunity to be heard by a State or local boards or commissions. This means that aggrieved bidders may have another opportunity to object to an agency’s award decision prior to a final decision being made.

The Sunshine Law (F.S. 286.011) generally requires that public board or commission meetings be open to the public, and that notice of the meeting is provided. It does not, however, mandate that the public have an opportunity to comment on all matters that may come before the board or commission. The intent of the Sunshine Law is to provide the public with an opportunity to observe the agency’s decision-making process, but not necessarily a right to be heard. Senate Bill 50, which goes into effect on October 1, 2013, creates a new Florida Statute, Section 286.0114 which requires that the public be given a reasonable opportunity to be heard on a proposition before a board or commission takes official action. This would include, for example, county commission or city council meetings.

With limited exceptions, the public must be afforded the right to be heard at or within reasonable proximity of the meeting at which the board or commission takes the official action. Boards and commissions are authorized by the to establish rules or policies which govern the opportunity to be heard, such as specifying a time for public comment; the amount of time that an individual has to address an issue; and forms which may be required to inform of the intent to speak.

At this point, it is unclear whether the new law will be interpreted to apply to advisory boards or committees that are appointed to evaluate or rank bids or proposals. It seems clear, however, that bidders should be granted the right to comment on final award decisions before they are made. The opportunity to be heard does not mean that a bidder should forego a formal bid protest where applicable. If a bid protest procedure is not afforded or if it was otherwise unsuccessful, the opportunity to be heard afforded by Section 286.0114 may provide another opportunity to explain your position prior to final action being taken.

William J. Cea

William Cea

wcea@bplegal.com

As a Board Certified Construction Attorney, Mr. Cea has handled multi-million dollar construction disputes, including defect cases on behalf of community associations, individual property owners, contractors, design professionals and developers.

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