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Construction Law Authority / Posts tagged "protest"

Court Finds Late Bid Was Not Late

May 13, 2013
Mark J. Stempler
Procurement

By: Mark J. Stempler

The case:  INSIGHT SYSTEMS CORP., and CENTERSCOPE TECHNOLOGIES, INC. v. THE UNITED STATES

The court: The United States Court of Federal Claims

 

A computer glitch forced disqualified proposers to challenge a U.S. government agency.  Here is an abridged version of what happened.  The United States Agency for International Development (USAID) advertised a Request for Quotations (RFQ).  Eventually during the process, proposers were allowed to submit their revised final quotes either in hard copy form, or electronically via email.  If the proposer submitted the quote electronically, it was its proposer’s responsibility to send in the appropriate information, and to do so timely to the people designated to receive it. 

 

The two Plaintiffs in this case submitted quotations in response, and did so electronically and in their opinion, before the deadline.  The way the system was set up, emails from outside sources directed to the specified USAID email addresses pass from the outside mail server through a sequence of three (3) agency-controlled computer servers, before they are ultimately delivered to the recipients.  To make a long story short, the emails were received by the first USAID server, but due to technical error, were not passed on to the ultimate recipients until after the submittal deadline.  USAID notified the proposers that their proposals would not be considered because they were received after the deadline.  Arguing that late is late, the USAID felt that it did not matter whether the perceived lateness was due to technological malfunctions with its own computer system.

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Protect Awards By Intervention in Bid Protests

September 4, 2012
William J. Cea
Procurement

As competition for public contract awards continues to intensify, consider intervention in the event that an award to your firm is protested. If an administrative protest is filed, the particular agency rules and regulations may provide for intervention. In the context of a bid protest, intervention means having the chance to directly participate in the defense of a protest and participate in the proceedings. Florida case law has held that an awardee has a significant interest in the outcome of an award challenge, and therefore, standing to participate in proceedings. By intervening, you will have the opportunity to directly influence the outcome of a protest, and may in the process, be of significant assistance to the public agency in defense of the award. Don't sit on the sidelines while other parties dispute whether your firm should receive the contract award. Bear in mind, however, that there may be strict time limitations on...

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New State Law Requires Public Bid Openings

July 16, 2012
William J. Cea
Procurement, Public Construction

During the several years, there has been some controversy concerning whether bid openings should be open to the public and what information bidders should have access to. In 2011, the Florida Legislature expanded the exemptions to the Public Records Law enlarging the time for bids to be exempt from inspection and copying from ten days to thirty days from the opening of the bids, or until the time of a notice of intended award, whichever is earlier. Concerns were raised as to access to information, and whether bid openings should be open to the public. This year, the Florida Legislature enacted Section 255.0518, Florida Statutes which requires state and local agencies to open sealed bids for the construction or repairs on a public building or public work during an open meeting conducted in accordance with the Sunshine Law. The agency is further required to announce the name of each bidder and the price submitted in...

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Bid Protest Filing Deadlines Are Strict, Unless….

January 6, 2012
Mark J. Stempler
Contracts, Procurement

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...

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

February 8, 2011
Mark J. Stempler
Procurement

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.     

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