With the high stakes at play in public construction contracts, bid protests and disputes are relatively common among contractors in Florida.
Bidding is critical to the success of a construction business and being adversely affected by an erroneous, unfair, or biased decision can impact the financial security of contracting companies.
If you intend to challenge the terms, conditions, criteria, or specifications of a procurement by a public organization, it helps to understand the possible grounds for bid protests and what the criteria and procedures are for protesting.
You don’t have to navigate these issues alone. Our seasoned bid and bid dispute lawyers are experienced not only in helping contractors submit and evaluate bids but also in advancing protests.
What is the process for filing a bid protest?
Competitive bid disputes of state procurements in Florida are governed by the Administrative Procedures Act as well as Florida Statutes and the Florida Administrative Code.
All state agency procurements must follow a set of procedures when making a decision. Also, there are strict procedures and timelines to adhere to if you want to raise an objection or file a protest.
To protest a bid award or make another challenge in Florida, the following process applies:
- File a notice of intent to challenge within 72 hours of the posting of the information.
- File a protest bond with the Agency equal to one percent of the estimated total volume of the contract.
- File a formal written protest with the contact person listed in the bid solicitation within 10 days of filing the notice of protest. This should contain an explanation of how your interests have been affected, a statement of how and when notice of the bid solicitation or the Agency’s contract award was received and the facts and law upon which your protest is based.
- The award process will be halted until the bid dispute is resolved.
- The contract manager has seven working days to resolve the issue informally.
- Any decision by the agency to change an intended award or reject bids or proposals due to discussions must include a new notice of rights permitting any affected parties to file a challenge to the new action.
- If no resolution is possible by mutual agreement within seven working days of receipt of the protest, the matter is referred to the Division of Administrative Hearings. A hearing must be scheduled within 30 days of receipt of the protest being received.
- At the hearing, presided over by an Administrative Law Judge, the protestor must prove that the agency’s action was contrary to the agency’s governing statutes, rules or policies, or the procurement specifications and that the decision was erroneous, contrary to competition, arbitrary or capricious.
- Within 10 days of the transcript being prepared, each party may file a proposed recommended order with the judge, outlining the proposed findings of fact and conclusions of law. The judge then has 30 days to enter a recommended order
- Parties can file exceptions with the agency within 10 days of the recommended order being issued and a final order must be issued within 30 days (subject to appeal).
Usually with bid protests, the prevailing party recovers all costs and charges excluding attorney’s fees.
Because of the complex nature of construction law and bid disputes, the strict requirements that apply when making a complaint and the potential for further financial losses, most contractors hire legal assistance to manage the process.
Bid rules vary by government agency in Florida
Unfortunately, because bid rules vary across government agencies in Florida (separate local, state, and federal agency requirements for instance), there is no one set of legal requirements and procedural rules to follow when making decisions about construction contracts with private construction companies.
While state agencies must follow the guidelines detailed above for bid disputes, other agencies may have different rules for managing bid protests.
Contractors bidding for government contracts must understand the particular rules of the agency managing the bidding and contracts before determining whether there are reasonable grounds for a protest.
Your bid protest lawyer can assist you with this, as we have deep insight into the rules and regulations of local, state and federal agencies.
What are the standard criteria for raising bid protests?
All government agencies must follow the statutory requirements although they may exercise a large degree of discretion when awarding bids.
Any contractor looking to protest a decision must be able to demonstrate that they are a “responsive” and “responsible “contractor or their protest will not carry any weight.
- A “responsive” contractor is one whose bid conforms in all material respects to the solicitation published by the agency.
- A “responsible” contractor possesses the appropriate skills and has access to resources that enable it to complete the construction project to spec and on time.
If you fall short in either aspect, you will have no standing to protest a decision from any government agency in Florida.
Pre- and post-award bid protests
The agency in question may have different rules for different stages of a bid that you wish to protest. A pre-award protest is usually concerned with challenging the selection requirements employed by the agency when granting a bid to a contractor.
A post-award bid dispute results from the decision made by the agency — and you must check that you have grounds for a protest about the selection process employed.
Types of bid rigging in construction bid disputes
“Bid rigging” can harm your chances of being awarded a contract. There are three main types of “bid rigging” with public contracting in Florida:
where contractors agree to not participate in the bidding process or withdraw an existing bid in exchange for a sub-contract or other payoff.
Where contractors agree to take turns in being the lowest bidder to facilitate the rotation of awards for bids.
Where colluding construction companies intentionally lose a contract to open the door for another contractor — by submitting an inflated bid, purposely including unacceptable conditions, or not meeting the requirements of a “responsive” bidder.
How to identify bid rigging
Bod rigging can be challenging to identify. Some of the more obvious signs include:
- Projects repeatedly awarded to the same contractor/group of contractors
- Subcontracts awarded to losing bidders
- Shoddy construction work
- Reports or whistleblowing from witnesses of the misconduct
For advice about bid protests or disputes, call us today at 407-734-4553 to arrange a consultation or complete a short form and let us know the nature of your issue.