In a reminder that Florida Bid Protest law can be unforgiving with regard to a late-filed Notice of Protest, a recent decision by the Florida Division of Administrative Hearings found that even though a bid protest was meritorious, it was rejected because the protestor failed to file the required Notice of Intent to Protest within 72 hours of the Agency posting its decision. See prior Article: Bid Protest Law: Know Your Rights- The Clock is Ticking (http://smithlawtlh.com/category/bid-protest-law/).
Cady Studios, LLC v. School Board of Seminole County, Case No. 18-0134BID (DOAH, 2019) involved a bid protest concerning a Request for Proposals for school yearbook and photography services for the school district. The RFP required that the proposals include a paper copy as well as 10 USB “thumb drives.” A total of 13 vendors submitted proposals, including Cady Studios. During the evaluation process, two evaluators tried to open Cady Studios’ “thumb drive” copy of the proposal but found that the USB was blank. During an evaluation meeting, the other evaluators stated that their copies of the USB worked and could be opened. Nevertheless, one of the evaluators who could not open the file refused to review a paper copy or another USB thumb drive, instead awarding “0” points to Cady Studios for all scoring categories. The other evaluator agreed to review a paper copy of the proposal and scored the proposal.
Upon scoring of all proposals, a “Short List” notice was sent to the top seven vendors based upon a “natural break” in the scores at that point. Cady Studios was the eighth ranked vendor. It was shown that had the proposal been scored, it would have closed the gap creating the “natural break” in scores, although Cady Studios would still have been eighth in scoring. The RFP did not specify any number of vendors to be awarded and Cady Studios may have been a selected vendor based upon improved scoring.
After posting of the Notice of Intent to Award, Cady Studios’ representatives contacted the School Board to ask for clarification as to why it did not make the “Short List.” The School Board agreed to hold a meeting, but it was scheduled for after the time a Notice of Intent to Protest would have been due (within 72 hours of the posting).
Ultimately, Cady Studios learned at the meeting that one evaluator had refused to score the proposal. Upon learning of this failure to score its proposal, Cady Studios filed a protest. It was referred to DOAH for a hearing on whether they had waived the right to hearing by failing to file a timely protest; whether there was “equitable tolling” because they had been lulled into the belief that there was no need to file a protest because there was a meeting scheduled to discuss the issues, and they only learned of the problem at that meeting; and whether the School Board acted arbitrarily and capriciously in failing to score the proposal.
The Administrative Law Judge (ALJ) found that the failure to file a Notice of Protest within 72 hours resulted in a waiver of the right to protest. The ALJ noted that the language in Section 120.57(3) is clear, and that the RFP and other solicitation documents specifically advised that waiver is the penalty for failure to timely file a Notice of Protest. The ALJ also found that there was no equitable tolling of the time period, even though the challenger was informed of a meeting to discuss the reasons for not making the short list, and even though the challenger only learned of the problem at the meeting.
The ALJ also agreed with Cady Studios’ claim that the School Board’s actions in failing to score the proposal were arbitrary and capricious. Thus, had a timely protest been filed, there were grounds to set aside the proposed award without Cady Studios as an awarded vendor.
This case shows that an affected party must timely assert its rights. Even though a vendor may not be certain of the reason for denial of its bid, the safe course of action is to file the Notice of Protest to allow time to evaluate the situation and determine whether to proceed with a formal bid protest.
The case is now on appeal to the Fifth District Court of Appeal.
If you have a Bid Protest Law question, please contact Geoffrey D. Smith: email@example.com.