David Adelstein is a Florida Bar board certified construction lawyer that represents contractors in bid protest proceedings.
There are times the public procurement process will result in bid protests. The key is to know what your rights are in the event you are a disappointed bidder. This may mean your bid / proposal has been disqualified and/or you think the winning bid / proposal should be disqualified.
Your bid protest rights should be set forth in the government’s solicitation. The solicitation should refer to a statute, ordinance, code, charter, or another source that will explain what you need to do to preserve your bid protest rights. Be familiar with these rights because bid protest rights move quickly. You do not want to have a strong protest basis but have failed to timely preserve your rights!
Bid protests for Florida state agencies are governed under the Administrative Procedures Act (specifically, Florida Statute s. 120.57(3)). For example, if you want to protest a construction solicitation from a state agency such as Florida’s Department of Environmental Protection or Florida’s Department of Transportation, Florida Statute s. 120.57(3) should govern your protest rights. (You also need to determine whether a bid protest bond is required to accompany your protest. For instance, with Florida Department of Transportation bid protests, Florida Statute s. 337.11 requires bid protest bonds and specifies how to arrive at the bid protest bond amount. For more information on bid protest bonds, check out this article.)
Bid protests for non-Florida state agencies (or local governmental entities) are generally governed under a local ordinance, code, charter or may refer to the Administrative Procedures Act. Again, refer to the solicitation to see what statute, ordinance, charter, code, etc. is specified. The reason being is that local governmental entities have their own protest procedures so protest rights for one entity will likely not be the same for protest rights for another entity. For example, Miami-Dade County issued Implementing Order 3-21 to govern bid protest rights. Broward County issued procurement code s. 21.118 to govern bid protest rights. Palm Beach County School Board, on the other hand, issued Policy 6.14 that refers to Florida Statute 120.57(3) to govern bid protest rights.
And, there are times a disappointed bidder needs to move forward with an injunction proceeding in court in pursuance of its bid protest rights in order to prevent that protested contract from being awarded to someone other than the disappointed bidder.
For federal government solicitations, subpart 33.1 of the Federal Acquisition Regulations contains details concerning bid protests. Many bid protests are filed with the United States Government Accountability Office (GAO), although this isn’t the only federal forum that may hear bid protests.
Please contact David Adelstein at [email protected] or (954) 361-4720 if you have questions or would like more information regarding bid protests. You can follow David Adelstein on Twitter @DavidAdelstein1.