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Construction Law Authority / Procurement (Page 3)

Bid Protest Filing Deadlines Are Strict, Unless….

The general rule is that bid protests must be timely filed in order to be considered. Most government agencies in Florida have specific deadlines for which a bid protest must be filed. These deadlines are expressed in terms of days, or even hours, and may specify the exact method that the protest or notice of protest must be submitted to be considered timely filed. A Protest filed after the deadline is usually considered a waiver of the protestor’s rights.  There are, however, scenarios where a protest technically filed after the deadline may still be considered. This is exemplified in the recent case Pro Tech Monitoring, Inc. v. State Department of Corrections. There, a protesting bidder was supposed to hand-deliver its formal bid protest petition to the clerk by a certain date. The agency’s clerk, however, did not stamp the petition in until the next day, and the agency determined the protest was untimely. However, the protestor had tried...

New Year Brings Potential CCNA Change

Florida Statutes, Section 287.055, known as the Consultants' Competitive Negotiation Act ("CCNA"), provides a framework for the public procurement of professional services. Professional services are defined to include those services "within the practice of architecture, professional engineering, landscape architecture, or registered surveying and mapping". The CCNA provides that the price of the service is not a factor in the evaluation and ranking of the firms. Price may only be considered as part of the negotiation phase. Further, an agency is limited to negotiating price with one firm at a time. In other words, the only pricing that is received is from the top ranked firm, and pricing from the second ranked firm is not received unless negotiations with the first firm are formally terminated. There is a Bill pending in the Florida Legislature that would modify the above process. Specifically, Senate Bill No. 246 provides for proposed amendments to the CCNA, including...

New Year Brings Potential CCNA Change

Florida Statutes, Section 287.055, known as the Consultants' Competitive Negotiation Act ("CCNA"), provides a framework for the public procurement of professional services. Professional services are defined to include those services "within the practice of architecture, professional engineering, landscape architecture, or registered surveying and mapping". The CCNA provides that the price of the service is not a factor in the evaluation and ranking of the firms. Price may only be considered as part of the negotiation phase. Further, an agency is limited to negotiating price with one firm at a time. In other words, the only pricing that is received is from the top ranked firm, and pricing from the second ranked firm is not received unless negotiations with the first firm are formally terminated. There is a Bill pending in the Florida Legislature that would modify the above process. Specifically, Senate Bill No. 246 provides for proposed amendments to the CCNA, including...

Government Bid Protests – An Overview (Part III of III)

In many bid protests, the ultimate question is whether the bidding irregularity or irregularities at issue gave the winning bidder or proposer an unfair advantage over the other bidders or proposers.  But, not all irregularities matter.  If it’s a material irregularity, like the winning bidder changing its price after the bids have been submitted and evaluated, and contrary to the specifications, that may be considered material.  But if it’s a minor irregularity, public agencies typically reserve the right to waive those.

Guess who decides whether an irregularity is material or minor.  The agency.  Also, keep in mind that public agencies are generally afforded wide discretion in soliciting and accepting bids, and in interpreting their own rules and requirements.  In one Florida case, a bidder submitted a cashier’s check instead of a the bid bond required by the Invitation to Bid.  The agency, and later the court, determined that since the cashier’s check accomplished the same purpose as the bid bond, it was considered a minor irregularity.  In that case the fact that bidder at issue was also the lowest bidder, and acceptance of the bid saved the agency money on the project, may have motivated the agency’s decision.

Suppose you file your protest, and someone like the purchasing director, for example, denies the protest on the merits.  Can you go straight to the courthouse to file a lawsuit?  The answer is probably not.  Administrative remedies must be exhausted before you can seek relief from the courts.  This means that you have to go through the protest procedure, and see it through to the end.  You may be required to have a hearing before a hearing officer which is a trial-like procedure.  At the end, the hearing officer may make a recommended award based on the facts presented.  That recommended award goes back to the agency, who may make the final award.

Keep in mind that a hearing officer’s recommended award is just that, a recommendation.  The order is not automatically reviewable by a court.  There may be times where a protestor can have a non-final order reviewed, but likely only if there are immediate negative consequences and review of the administrative agency’s action will not be good enough. 

Government Bid Protests – An Overview (Part I of III)

One purpose of the government procurement process is for each bidder or proposer to be on equal terms to get fair consideration of their submissions. If the bidding process has been violated, however, a losing bidder or proposer may be able to protest the government agency’s decision.

Generally, the way to win a protest is to show that an agency did something that was clearly erroneous, contrary to competition, arbitrary, capricious or fraudulent.  An arbitrary decision is one that is not supported by facts or logic.  A decision is capricious if it is adopted without thought or reason, or is irrational.

Keep in mind that almost every agency’s rules and regulations are different. That means agencies generally have different protest procedures and deadlines. Usually the deadline to file a protest, or a Notice of Intent to protest if required, is very short. It can be a matter of hours or days. And the information required in the protest, and in submitting the protest, can be very specific.

As mentioned above, some agencies require a Notice of Intent to Protest an award before a formal protest is due. The Notice is usually a short statement from the protestor that it is going to file a protest. Sometimes, however, the complete protest grounds must be stated in the Notice. 

The formal protest is usually the more substantive letter, memorandum, or other written submission that discusses in detail all the protest grounds raised.