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Upon receipt of the intent to protest, the agency has72 hours, excluding Sat. & Sun., and state holidays,to provide the estimated contract amount to thevendor, in order to establish the 1% protest bondamount. §287.042(2)(c) Fla. Stat.
The estimated contract amount shall be based uponthe contract price submitted by the protestor or, if nocontract price was submitted, the agency shallestimate the contract amount.
The estimated contract amount is not subject toprotest.
The formal written protest that includes theallegations must be filed within 10 days of filing thenotice of intent.
– Be careful! Some agencies (Fla. Lottery and State GroupInsurance to name two) require the formal written protest andbond to be filed within 72 hours. Check the solicitationdocument and governing statute for the filing deadline within72 hour period.
Failure to file the formal written protest within thetime prescribed by §120.57(3) Fla. Stat., or failure topost the (1%) bond or other security required by lawshall constitute a waiver of proceedings underChapter 120, Florida Statutes.
Upon receipt of the formal written protest thathas been timely filed, the agency shall stop thesolicitation or contract award process until thesubject of the protest is resolved by finalagency action, unless the agency head setsforth in writing particular facts andcircumstances which require the continuanceof the solicitation or contract award processwithout delay in order to avoid an immediateand serious danger to the public health, safety,or welfare. §120.57(3), Fla. Stat.
Steps after the formal protest is received:– Agency offers a settlement meeting, held within 7 days in
accordance with 120.57(3), Fla. Stat. Agency determines iterred, and enters into written agreement with protester thatprotester will withdraw protest and agency will post a newnotice of intended decision.
– Agency offers a settlement meeting, and the protestorwithdraws. Note that these are public meetings. The intendedawardee may be invited.
– Agency offers a settlement meeting, and achieves acompromise. All parties sign a settlement agreement and theprotester withdraws the protest.
– If no settlement, the matter is referred to the Division ofAdministrative Hearings or the agency head, if no disputedissues of material fact are involved.
If the subject of a protest is not resolved bymutual agreement within 7 days, excludingSaturdays, Sundays, and state holidays, afterreceipt of the formal written protest, and ifthere is a disputed issue of material fact, theagency shall refer the protest to the divisionfor proceedings.
A DOAH hearing shall commence within 30days of receipt of the protest at DOAH.
The protest must show that the specificationsare so vague that a bidder cannot submit anaccurate bid or that the specifications are sounreasonable that it is impossible to complyand still be competitive. See Advocacy Ctr. forPersons with Disabilities v. DCF, 721 So. 2d753 (Fla. 1st DCA 1998).
Standard of Proof – Whether the proposedagency action is clearly erroneous, contrary tocompetition, arbitrary or capricious.§120.57(3)(f), Fla. Stat.
Arbitrary action is "one not supported by factsor logic, or despotic." A capricious action isone "which is taken without thought or reasonor irrationally." Agrico Chem. Co. v. Dep’t ofEnvtl. Reg., 365 So. 2d 759 (Fla. 1st DCA1978).
A Responsible vendor has the ability toperform all contract requirements and theintegrity and reliability that will assure goodfaith performance. § 287.012(24), Fla. Stat.
Agency action taken in violation of SunshineLaw is void! Silver Express Co. v. District Bd. ofLower Tribunal Trustees, 691 So. 2d 1099(Fla. 3rd DCA 1997).
Evaluation committees are open! See SilverExpress.
Oral presentations to an evaluationcommittee are open! Port Everglades Auth. v.International Longshoremen’s Ass’n, 652 So.2d 1169 (Fla. 4th DCA 1995).
Bidders or persons acting on their behalfcannot contact, between the release of thebid and the end of the protest period after theposting of intended award, any employee orofficer of the executive or legislative branchconcerning any aspect of the bid, except inwriting to the sole point of contact. Violationmay be grounds for rejecting the bid.§287.057(24), Fla. Stat.
Only the appearance of impropriety canjeopardize a contract award!
– Administrative Law Judge found appearance ofimpropriety where an evaluator had a relationshipwith a subcontractor’s principal. SeeTransportation Mngmt. Serv. of Broward v.Commission for the Trans. Disadvantaged, DOAH05-0920BID (May 2005).
Academy Express, LLC v. Broward County– Shuttle bus service. scoring resulted in a tie, between Academy and
Limousines, with the tie broken in favor of Limousines. Academyprotested on the basis that Limousine had made materialmisrepresentations in its response.
P’ship for Cmty. Health v. DCF– Challenge to constitutionality of protest bond requirement under due
process clause and access to courts provision.
Dep’t of Hwy. Safety & Motor Veh. v. Nat’l SafetyComm’n, Inc.– National Safety Commission argued that language of contract
between itself and DHSMV granted it right to unilaterally renewcontract for additional five year term.
Laboratory Corp. of America v. DOH– Second place vendor challenged that winning bidders proposal of a
staffing plan rather than identification of each proposed individualemployee rendered winning bid to ITB materially non-responsive.
Traveler Elevator v. Fla. Sch. for the Deaf and theBlind– ALJ found the question of whether late-arrival constituted material
deviation did not matter in protest of rejection of all bids, school hadlegitimate question as to how such a decision would be resolved andelected to restart bid process instead.
Keystone Peer Review v. AHCA– question of disputed fact as to whether the procurement was exempt
from 287.057 procedures and it was thus improper for AHCA todismiss the protest.