Monthly Archives: August 2023

Challenges to Bid Specifications – Don’t be Afraid to Rock the Boat!

Businesses involved in contracting with federal, state, or local government agencies as vendors or service providers are likely well aware of the complexity and detail typically included in the specifications and requirements for public contract solicitations contained in Invitations to Bid, Requests for Proposals, Invitations to Negotiate, and other similar documents. (For ease of reference I will refer to these documents as “bid solicitations” in this article.) Far too often, parties interested in responding to bid solicitations fail to timely ask questions, seek clarifications, or challenge the specifications, which can result in a waiver of the right to raise such issues later in the evaluation and contract award process. In some instances, it is simply a failure of the proposed vendor to do the tough job of plowing through the specifications to make sure that the bid solicitation is clear and unambiguous, and that their product or service can meet the specifications as written. In other instances, the proposed vendor may identify unclear terms, or worse, specifications that they may not meet, and still decide that they don’t want to “rock the boat” by raising the concerns with contracting authority.

This is a common error for businesses seeking government contracts, as most contracting authorities have strict timelines for raising problems or questions about the bid solicitation documents. The failure to do so often results in a waiver of the right to raise these issues or questions later should the vendor be disqualified as “non-responsive” or “non-responsible” or simply fail to score well in the evaluation process.

At the federal level, for example, Federal Acquisition Regulation 33.103 provides that:

(e) Protests based on alleged apparent improprieties in a solicitation shall be filed before bid opening or the closing date for receipt of proposals. In all other cases, protests shall be filed no later than 10 days after the basis of protest is known or should have been known, whichever is earlier. The agency, for good cause shown, or where it determines that a protest raises issues significant to the agency’s acquisition system, may consider the merits of any protest which is not timely filed.

Federal decisions of the General Accounting Office have rejected untimely protests noting that “[T]his view is consistent with the purpose behind our Regulations’ timeliness rule for protests alleging solicitation improprieties: i.e., to give the agency notice of the protest before bid opening or receipt of proposals, to provide an opportunity for the agency to take action before bids or proposals are prepared and submitted. Applied Controls Co., Inc., Recon., B-228568.2, Nov. 30, 1987, 87-2 CPD ¶ 528 at 1; ERA Helicopters, Inc., B-218607, Aug. 1, 1985, 85-2 CPD ¶ 114 at 2.”

In Florida, the law is clearly stated in Section 120.57(3)(b), Fla. Stat., which includes specific waiver language as follows:

(b) Any person who is adversely affected by the agency decision or intended decision shall file with the agency a notice of protest in writing within 72 hours after the posting of the notice of decision or intended decision. With respect to a protest of the terms, conditions, and specifications contained in a solicitation, including any provisions governing the methods for ranking bids, proposals, or replies, awarding contracts, reserving rights of further negotiation, or modifying or amending any contract, the notice of protest shall be filed in writing within 72 hours after the posting of the solicitation. The formal written protest shall be filed within 10 days after the date the notice of protest is filed. Failure to file a notice of protest or failure to file a formal written protest shall constitute a waiver of proceedings under this chapter.

Similar provisions are included in numerous county and municipal procurement codes and ordinances throughout Florida, as well as set forth in many bid solicitation documents expressly.

The consequences of failing to raise timely questions can be severe. Below are just a few of the many cases where a bid protest challenge was rejected for failing to timely raise the matter in a protest to the bid solicitation.

Soly Interiors Division of Lyons Construction Company, As Agent For Wellco Carpet Corporation, Petitioner v. Department of General Services, Division of Purchasing, Respondent., 1988 WL 616900. The record reflects that petitioner received a “bid specimen” containing the questioned item long before the ITB was issued. However, Soly did not seek clarification as to how the certification should be completed or what meaning should be ascribed to the terms “manufacturer,” “supplier” and “open account.” By failing to do so, Soly waived any objection to a lack of clarity in the special condition.
Capeletti Brothers, Inc. v. Department of Transportation, 499 So.2d 855, 857 (Fla. 1st DCA 1986). The failure to timely seek correction or clarification of plans and specifications constitutes a waiver of that claim.
Juvenile Services Program, Inc. v. Department of Juvenile Justice, DOAH Case No. 10-6280BID (DOAH 2011). In this case, it is concluded that Petitioner failed to timely challenge the terms of the RFP and thereby waived any claim that sought to challenge the specifications of the RFP.
Eckerd Youth Alternatives, Inc. v. Department of Juvenile Justice, DOAH Case No. 10-0535BID; Judge Susan B. Harrell. Even though it was not stated in the RFP, the calculation using an “Average” recidivism rate had been the Department’s prior policy and the proposer was aware of this and did not challenge the lack of clear methodology within 72 hours of the RFP being issued. Therefore, the issue of unclear specification was waived, and it was not arbitrary or capricious to use the long-standing prior policy.
Optimum Technology, Inc. v. Department of Health, DOAH Case No. 11-0275BID; Judge Robert E. Meale. DOH issued an RFP for a prescription drug monitoring system. Petitioner argued that the process was flawed because it did not include any meeting to “normalize” the scores of the evaluators to eliminate bias or arbitrary scoring. The court held such argument could only be raised within 72 hours of issuing RFP and was therefore waived.
Troy Foundation, Inc. v. Department of Juvenile Justice, DOAH Case No. 10-0536BID; Judge Claude B. Arrington. The RFP included a clear footnote that the specific type of program considered would be considered in evaluation of past performance. The disappointed proposer failed to raise any challenge to this specification within 72 hours of the RFP being issued, and the issue was therefore waived.

Thus, it is abundantly clear that vendors and contractors with government agencies must carefully review bid solicitations when they are issued. If there is any perceived problem with the solicitation, the potential vendor or supplier must act quickly to preserve rights to raise the issue. Vendors will be ill-served by seeking to avoid controversy with the issuing government authority or being afraid to “rock the boat.” In fact, in many instances, a party raising a challenge will be doing the procurement agency a favor by allowing the opportunity to fix a potential problem.

Some common problems in bid solicitations include:

Unclear or Ambiguous Terms. It has long been recognized that public agencies have a duty to write clear and unambiguous bid specification. When specifications are unclear or indefinite, potential bidders should act quickly to protest unclear provisions.
Biased or “Proprietary” Specifications. Specifications may intentionally or unwittingly be designed in a manner that unfairly favors or discriminates against a specific vendor. Specifications may not be drawn in a manner that would permit only one bidder to qualify. Robinson’s, Inc. v. Short, 146 So.2d 108 (Fla. 1st DCA 1962). For example, a manufacturer of truck-weighing scales was entitled to a formal administrative hearing based on its claim that the Department of Transportation had specified a static scale system that could be supplied by only one vendor. Fairbanks, Inc. v. State, Dept. of Transportation, 635 So.2d 58 (Fla. 1st DCA 1994). Mayes Printing Co. v. Flowers, 154 So.2d 859 (Fla. 1st DCA 1963) offers another illustration of an exclusionary bid.
Unreasonable Qualifications, References, Certifications or Experience Requirements. Use of “gatekeeper” provisions that set forth unreasonable experience, references, certifications, or other provisions to be considered qualified for the contract and that are designed to eliminate otherwise qualified bidders, products, and services from the solicitation process are certainly suspect. While a government contracting agency may have legitimate reasons for such provisions, they should not be overly restrictive nor designed to limit competition or provide an unfair advantage to one or more contractors. If a vendor can legitimately provide the product or service being sought, then restrictive provisions that serve no real purpose other than limiting legitimate competition should be challenged.
Use of an RFP, ITN, or Other Solicitation Method When an ITB Based Upon Price Should Be Used. Most procuring government agencies have a hierarchy that recognizes an Invitation to Bid, where lowest cost prevails, is the preferred method of government procurement since it saves taxpayers dollars and avoids “sweetheart deals.” Unfortunately, many governmental agencies gloss over the preferences in statutes, ordinances, and regulations for decision making based upon the lowest priced proposal for comparable products and services. If the products or services can be described with reasonable specificity, and the government is not looking to proposers to invent or create a new solution to a general problem, then an ITB should likely be the preferred solicitation method.

While an exhaustive discussion of all potential protests is beyond the scope of this article, any vendor should carefully review bid solicitations when issued. Any problems or questions need to be asserted in a timely manner.

For a more detailed look into bid protests, please review our article – Bid Protests – Know Your Rights.

Should you have any questions or need assistance with a bid protest, please contact an experiences bid protest attorney at Smith & Associates for a free consultation.

AHCA PROPOSED RULE CHANGES FOR NURSE REGISTRIES

AHCA Notice of Rule Changes

On August 15, 2023, the Agency for Health Care Administration (“AHCA”) published notice of a proposed rule amendment regarding Florida Administrative Code (F.A.C.) Rule 59A-18.0081 which applies to regulation of licensed Nurse Registries in Florida. A copy of the AHCA Notice of Proposed Rule Amendment can be accessed here. Licensed Nurse Registries in Florida should review the proposed changes to determine how these changes to the Rule will affect their future operations, and if there are any concerns that should be addressed prior to the Rule becoming final. Nurse Registries affected by the Rule have certain rights, as described below, to participate in a public hearing or in a formal Rule Protest proceeding to seek changes or modifications to the proposed Rule amendments.

Overview of Rule Amendments

The current Rule 59A-18.0081, F.A.C. sets forth general requirements governing Nurse Registries including Rules that set forth requirements for certified nursing assistants (“CNAs”) and home health aides (“HHAs”) who provide health care services to patients in the home or place of residence and specifies the services that a CNA or HHA can perform. The main purpose of the proposed Rule amendments is to incorporate changes based upon changes recently made to Florida Statute 400.488, “Assistance with self-administration of medication and with other tasks.” This statute was updated in 2022 to add that CNAs and HHAs may assist with other tasks other than just self-administration of medication. This Rule amendment clarifies for CNAs and HHAs what can be performed, and it also clarifies some tasks that cannot be performed.

The proposed rule amendment reflects the additional tasks that CNAs and HHAs may now perform as taught and documented by a registered nurse (“RN”). Many of the proposed changes to the rule are reorganizing the language; however, it does specify both additional tasks that are now allowed, as well as specify some tasks that are not allowed. These proposed changes will assist in clarification for CNAs, HHAs, and the RNs that supervise them. The specific rule changes that include the additional tasks are as follows (underlined additions, strike through deletions):

(a) Assisting with the placement and removal change of a colostomy bag, excluding the removal of the flange or manipulation of the stoma’s site reinforcement of dressing;
(b) Assisting with the application and removal of anti- embolism stockings and hosiery prescribed for therapeutic treatment of the legs.
(b) through (d) renumbered (c) through (e) No Change.
(f) (e) Administer Doing simple urine tests for sugar, acetone or albumin;
(g) Assisting with the use of a glucometer to perform blood glucose testing;
(h) (f) Measuring and preparing special diets;
(i) (g) Measuring intake and output of fluids; and,
(j) (h) Measuring vital signs, including temperature, pulse, respiration or blood pressure;
(k) Assisting with oxygen nasal cannulas and continuous positive airway pressure (CPAP) devices, excluding the titration of the prescribed oxygen levels; and
(l) Assisting with the reinforcement of dressing.

The proposed rule amendment regarding the tasks that cannot be performed by a CNA or Home Health Aide are as follows:

(a) Administer any nursing or therapeutic service that requires licensure as a health care professional;
(b) Change sterile dressings.
(c) Irrigate body cavities such as giving an enema;
(d) Perform irrigation of any wounds (such as vascular ulcers, diabetic ulcers, pressure ulcers, surgical wounds) or apply agents used in the debridement of necrotic tissues in wounds of any type;
(e) Perform a gastric irrigation or enteral feeding;
(f) Catheterize a patient;
(g) Administer medications;
(h) Apply heat by any method;
(i) Care for a tracheotomy tube;
(j) Provide any service which has not been included in the plan of care; or,
(k) Providing assistance with a pill organizer, such as removing medication from a pill organizer and placing the medication in the patient’s hand or filling a pill organizer with the patient’s medication(s).

Other proposed changes to the rule worth mentioning are that when it comes to assistance with self-administration of medications, previously it was required that a review of the medications for which assistance is to be provided was to be conducted by a registered nurse or a licensed practical nurse (“LPN”). The proposed rule will change this and require that an assessment of the patient and patient’s medications for which assistance is to be provided must be conducted by an RN to ensure that a patient receiving such assistance is medically stable and has regularly scheduled medications that are intended to be self-administered. This assessment may not be conducted by an LPN.

Right to Participate in Public Hearing or Formal Rule Challenge Proceedings

Prior to the adoption, amendment, or repeal of any rule other than an emergency rule, an agency such as AHCA is required to give notice of its intended action as required by Section 120.54(3)(a), Florida Statutes. The notice must be published in the Florida Administrative Register not less than 28 days prior to the intended action. Any person who will be substantially affected by a rule or a proposed rule may request a Public Hearing on the Rule changes and may seek an administrative determination of the invalidity of the rule on the grounds that the rule is an invalid exercise of delegated legislative authority pursuant to F.S. 120.56. There are strict time restraints for challenging a proposed rule that are delineated in F.S. 120.56(2) as follows:

A petition alleging the invalidity of a proposed rule shall be filed within 21 days after the date of publication of the notice required by s. 120.54(3)(a); within 10 days after the final public hearing is held on the proposed rule as provided by s. 120.54(3)(e)2.; within 20 days after the statement of estimated regulatory costs or revised statement of estimated regulatory costs, if applicable, has been prepared and made available as provided in s. 120.541(1)(d); or within 20 days after the date of publication of the notice required by s. 120.54(3)(d).

According to published Notice, a Rule Workshop on the proposed Nurse Registry rule changes is scheduled for September 14, 2023, 2:00 p.m. to 3:00 p.m. at the Agency for Health Care Administration, 2727 Mahan Drive, Building 3, Conference Room C, Tallahassee, FL 32308. Individuals may also participate by dialing the Open Voice conference line, 1(888)585-9008, then enter the conference room number followed by the pound sign, 998-518-088#. The agenda and related materials can be found on the web at:
https://ahca.myflorida.com/MCHQ/Health_Facility_Regulatio n/Rulemaking.shtml.
Any affected party may participate in the Workshop to offer comments, ask questions, or suggest modifications. Any Petition to Challenge Proposed Rule Amendments would need to be filed with the Division of Administrative Hearings within 10 days after the final public hearing is held.

Legal Standards in a Rule Challenge

In a formal hearing the Party filing a Rule Challenge has the burden to prove by a preponderance of the evidence that they would be substantially affected by the proposed rule. The Agency then has the burden of proving by a preponderance of the evidence that the proposed rule is not an invalid exercise of delegated legislative authority as to the objections raised. According to Section 120.52(8), Florida Statutes, a rule is deemed to be an “invalid exercise of delegated legislative authority” if any of the following apply:

(a) The agency has materially failed to follow the applicable rulemaking procedures or requirements set forth in this chapter;
(b) The agency has exceeded its grant of rulemaking authority, citation to which is required by s. 120.54(3)(a)1.;
(c) The rule enlarges, modifies, or contravenes the specific provisions of law implemented, citation to which is required by s. 120.54(3)(a)1.;
(d) The rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency;
(e) The rule is arbitrary or capricious. A rule is arbitrary if it is not supported by logic or the necessary facts; a rule is capricious if it is adopted without thought or reason or is irrational; or
(f) The rule imposes regulatory costs on the regulated person, county, or city which could be reduced by the adoption of less costly alternatives that substantially accomplish the statutory objectives.

A grant of rulemaking authority is necessary but not sufficient to allow an agency to adopt a rule; a specific law to be implemented is also required. An agency may adopt only rules that implement or interpret the specific powers and duties granted by the enabling statute.

An example of a recent finding where a rule was found to be an invalid exercise of legislative power was in Fla. Dep’t of Bus. & Pro. Regul., Div. of Alcoholic Beverages & Tobacco v. Walmart Inc., No. 1D19-4599, 2021 WL 1996361 (Fla. Dist. Ct. App. May 19, 2021), reh’g denied (Aug. 19, 2021), wherein the Court held:

Plain meaning of “restaurant” as term was used in statute governing eligibility for consumption-on-premises liquor licenses, whether term’s meaning was “public eating place” or “public food service establishment” or “business establishment where meals or refreshments may be purchased,” supported that restaurants customarily sold food prepared offsite and that restaurants were not limited to selling food prepared onsite, and, thus, rule interpreting statute and defining items “customarily sold in a restaurant” to exclude food prepared offsite was invalid for enlarging, modifying, or contravening statute.

Affected Parties Should Review the Proposed Rule Changes

Nurse Registries affected by the proposed rule amendment should review the proposed amendments carefully. If you feel there is a need for clarification, or that a rule is not warranted or is in conflict with statute, you should exercise your legal rights to participate in the Workshop and any future Public Hearing to seek modification of the proposed rule amendments, or to challenge proposed Rule amendments that may be invalid.

If you have questions or concerns about this new rule, you can contact an experienced healthcare attorney at Smith & Associates for a free consultation.

Defending Your Professional License from an Administrative Complaint

You worked hard to obtain your professional license. You also work hard to maintain your professional license. Whether it be a medical license, a nursing license, a real estate license or any of the other professional licenses issued by the Florida Department of Health or the Department of Business and Professional Regulation, these professional licenses allow you to practice your trade and earn a living.

However, if the agency or board in charge of your license has probable cause to believe your have violated a statute or rule governing your license, it can issue an administrative complaint and seek to take disciplinary action against you, including the revocation of your license.

It is important to have strong, experienced legal counsel representing you through the disciplinary process.

How Does the Process Work

The process starts when an agency or board receives a complaint about a licensed individual. These complaints can come from anyone, including your employer, law enforcement, or the general public. Once a complaint is received, the appropriate board will notify the licensed individual and begin its investigation. The complaint and any investigative materials will remain confidential during the investigation process.

The investigation is your first opportunity to address any allegations of wrongdoing. If you receive an investigation letter or a phone call from an investigator, you will be given the opportunity to explain, deny, or otherwise justify the allegations contained in the complaint. However, please note that, while this is not a criminal matter, anything you say can be used against you as the process proceeds.

After the investigation is concluded, the investigation team will present their findings to the appropriate probable cause panel who will make a determination as to whether probable cause exists to issue an administrative complaint. As this process is still confidential, you will not be informed about the result until after the panel has made its decision. If the panel finds that no probable cause exists, the matter will be closed, and the complaint and investigative materials will be kept confidential.

If the panel determines that probable cause does exist, an administrative complaint will be issued and served upon you, to your address of record, by certified mail. Once you receive an administrative complaint, time is of the essence. If you fail to timely respond within 21 days, your right to dispute the claims in the complaint may be waived.

In response to the complaint, you will have three options:

Relinquish your license. Please note that, if you chose this option, it will be considered a disciplinary action and will affect your ability to obtain or renew any other professional licenses you may have in Florida and will likely have a negative affect on any professional licenses you may maintain in other states.
Request an Informal Hearing. If you choose this option, you are admitting the material facts of the complaint and will be assigned an informal hearing officer who will hear your case and decide what, if any, punishment is proper. You should be very careful in choosing this option as you cannot deny the allegations in the complaint at the informal hearing.
Request a Formal Administrative Hearing. This option is usually the best option to select, however you must do more than simply select the correct checkbox (e.g., you must identify the facts you believe are in dispute). If you select this option, your case will be forwarded to the Division of Administrative Hearings where an Administrative Law Judge (ALJ) will be assigned to your case. You will be given the opportunity to conduct discovery (e.g., request relevant documents and take depositions of potential witnesses) and you will be given an opportunity to defend against the allegations and present your case. Importantly, the board or department will bear the burden of proving the case by clear and convincing evidence – that means that the burden is not on you to prove you didn’t do what is alleged, but that the board must prove everything that it has alleged.

Regardless of which option you pick, a final order will eventually be issued. While the best outcome is that no action is taken against your license, the potential disciplinary actions can include the issuance of a letter of reprimand, imposition of fines and costs, the placing of restrictions upon the license, suspension of the license, or permanent revocation of the license.

Why Should I Retain an Experienced Professional Licensing Attorney

An experienced professional licensing attorney can help you through the entire disciplinary process. For example, if you receive an investigation notice, an experienced attorney can draft a legal response to the investigation. This has two benefits 1) it prevents you from accidentally revealing information to the investigator that may be harmful to your case, and 2) it helps the probable cause panel understand the factual and legal issues within the complaint. Prevailing at the probable cause panel keeps the complaint confidential and prevents the need to go through the formal administrative hearing process.

Further, if an administrative complaint is issued, the board or department will be represented by its own attorneys. Having an experienced attorney fighting for you levels the playing field and helps ensure that you are able to put on your best defense. Additionally, an experienced professional licensing attorney can negotiate a reasonable settlement of the complaint early in the process to avoid the costs and expenses of a full administrative hearing.

If you have been notified that you are being investigated related to your professional license or if you have received an administrative complaint related to your professional license, you can contact an experienced professional licensing attorney at Smith & Associates for a free consultation.