Category Archives: Bid Protest Law

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 Has Released the SMMC ITN

AHCA has now released the Invitation to Negotiate (“ITN”) for the new Statewide Medicaid Managed Care contracts. Importantly, AHCA has set the following key deadlines:

Deadline for receipt of written questions is May 3, 2023.
The anticipated date for Agency responses to written questions is June 27, 2023.
Deadline for receipt of responses to the ITN is 12:00 p.m. August 15, 2023.

While review of the ITN is still ongoing, there are some key details to the proposed contracts that AHCA intends to award that stand out. The first is that AHCA intends to award contracts to “nationally accredited plans that offer an enhanced delivery systems and integration of behavioral and physical health services.” This focus on behavioral health services will provide significant benefits to enrollees and will provide a competitive advantage to prospective bidders who already have integrated behavioral health programs.

Additionally, AHCA has introduced what it calls “plus plans.” These plans are designed to allow family members to receive their services from a Medicaid managed care single plan that provides Managed Medical Assistance (“MMA”), Long Term Care (“LTC”), and specialty plans. According to the ITN, “[e]nrollees will no longer need to change plans to access specialty population services, split families up among multiple plans or choose between accessing Specialty plans.”

The ITN requires that providers that wish to provide LTC services must submit proposals that have them acting either as a comprehensive long term care plan, a comprehensive long term care-plus plan, or a selected comprehensive plan. MMA providers will be required to act either as a comprehensive LTC plan, a comprehensive LTC-plus plan, a MMA plan, or a MMA-plus plan. Finally, providers bidding on specialty services will be required to serve as a comprehensive LTC-plus plan or a MMA-plus plan.

Finally, due to legislative changes, AHCA will be able to award these contracts on either a statewide or regional basis. It should also be noted that this same legislative change also reduced the number of Medicaid regions from 11 to 9.

This is the third time that AHCA has bid these contracts. The prior two bids led to significant bid protests over who should be awarded these contracts. For more information on protesting an ITN award, please see our article Bid Protest – Know your Rights, the Clock is Ticking. With tens of billions of dollars at stake, it is likely that this will happen again. Should you decide to submit a bid, you should prepare your response with a protest in mind – making sure that all the ITN requirements are met and arranged in proper form. If you need assistance preparing your ITN response or have questions about the ITN, please feel free to contact us to discuss your options.

SMMC Contracts are on the Horizon: The ITN Has Now Been Released by AHCA

AHCA has now released the Invitation to Negotiate (“ITN”) for the new Statewide Medicaid Managed Care contracts. The details as well as the actual ITN can be found here: https://ahca.myflorida.com/medicaid/statewide-medicaid-managed-care/2023-smmc-re-procurement

Importantly, AHCA has set the following key deadlines:

Deadline for receipt of written questions is May 3, 2023.
The anticipated date for Agency responses to written questions is June 27, 2023.
Deadline for receipt of responses to the ITN is 12:00 p.m. on August 15, 2023.

Given what is at stake, bid protests over the award (and the specifications) are almost a given. While our article on bid protests covers this issue in more detail and can be found here, there are a few key things you should know about bid protests if you are considering bidding on the SMMC contracts.

The first issue is specification challenges. Specification challenges are challenges to the terms, conditions, or specifications contained in the solicitation (including any provisions governing the methods for ranking bids, awarding contracts, reserving rights for further negotiation, or modifying or amending any contract). If a potential bidder wished to make a specification challenge, a notice of protest must be filed within 72 hours after posting of the solicitation. Failure to timely file this notice of protest will result in waiving any challenges that the specifications were biased, unclear, or otherwise deficient. As the ITN was published on April 11, 2023 at 02:10 p.m., that means that any protest seeking to challenge these specifications must be made by Thursday, April 14, 2023 by 2:10 p.m.

The second issue arises after the intended award is posted. Any eligible person who wishes to challenge the award (or intended award) must file a notice of protest within 72 hours of the posting. These timelines, like the other timelines discussed in the linked article, are strict deadlines and failure to meet them will likely result in a waiver of your right to protest.

If you need assistance preparing your ITN response or if you are considering a bid protest to either the specifications or award of the new SMMC contracts, the experienced legal counsel at Smith & Associates can help. Contact us for a free consultation to discuss your rights.

SMMC Contracts Re-Bid – Invitations to Negotiate Will be Issued Soon

Florida’s Statewide Medicaid Managed Care (“SMMC”) contracts are soon going to be re-bid. With approximately $70 billion on the line, competition for these new contracts will be fierce. On May 6, 2022, AHCA issued a Request for Information regarding the new SMMC contracts, and 58 entities responded. These responses can be found here.

AHCA has now published its Medicaid Data Book which provides relevant historical data and background information to potential contractors who wish to respond to AHCA’s upcoming Invitation to Negotiate (“ITN”). This Medicaid Data Book can be found here.

In addition to providing valuable information to prospective bidders, the Medicaid Data Book is an important prerequisite to the issuance of the ITN as it must be issued 90 days prior to issuance of the ITN. As the Medicaid Data Book was issued on November 22, 2022, the ITN is expected to be released sometime at the end of February or beginning of March, 2023.

Further, AHCA is holding a public meeting regarding the Medicaid Data Book on January 5, 2023. A copy of the agenda for that meeting can be found here.

Given what is at stake, bid protests over the award (and the specifications) are almost a given. While our article on bid protests covers this issue in more detail and can be found at http://smithlawtlh.com/bid-protests-know-your-rights-the-clock-is-ticking/, there are a few key things you should know about bid protests if you are considering bidding on the SMMC contracts.

The second issue arises after an award (or intended award) is posted. Any eligible person who wishes to challenge the award (or intended award) must file a notice of protest within 72 hours of the posting. These timelines, like the other timelines discussed in the linked article, are strict deadlines and failure to meet them will likely result in a waiver of your right to protest.

With billions of dollars at stake on these SMMC contracts, you should be preparing your response to the ITN with a bid protest in mind – both to defend your award if you win and to place yourself in a good position to challenge if you are unsuccessful.
If you need assistance preparing your ITN response or if you are considering a bid protest to either the specifications or award of the new SMMC contracts, the experienced legal counsel at Smith & Associates can help. Contact us for a free consultation to discuss your rights

SMMC Contracts Update: The RFI’s are In and ITNs are Soon to Follow

Florida’s Statewide Medicaid Managed Care (“SMMC”) contracts are soon going to be re-bid. With approximately $70 billion on the line, competition for these new contracts will be fierce. AHCA issued a Request for Information on May 6, 2022 and 58 entities responded. These responses can be found here: https://ahca.myflorida.com/medicaid/statewide_mc/Re-Procure_request_info.shtml

As discussed in our prior article, we should expect the actual Invitation to Negotiate (“ITN”) to be issued soon. Given what is at stake, bid protests over the award (and the specifications) are almost a given. While our article on bid protests covers this issue in more detail and can be found here, there are a few key things you should know about bid protests if you are considering bidding on the SMMC contracts. The first issue is specification challenges. Specification challenges are challenges to the terms, conditions, or specifications contained in the solicitation (including any provisions governing the methods for ranking bids, awarding contracts, reserving rights for further negotiation, or modifying or amending any contract). If a potential bidder wished to make a specification challenge, a notice of protest must be filed within 72 hours after posting of the solicitation. Failure to timely file this notice of protest will result in waiving any challenges that the specifications were biased, unclear, or otherwise deficient. The second issue arises after an award (or intended award) is posted. Any eligible person who wishes to challenge the award (or intended award) must file a notice of protest within 72 hours of the posting. These timelines, like the other timelines discussed in the linked article, are strict deadlines and failure to meet them will likely result in a waiver of your right to protest.

SMMC Contracts are on the Horizon: The Time to Prepare is Now

Florida’s Statewide Medicaid Managed Care (“SMMC”) contracts are soon going to be re-bid. With approximately $70 billion on the line, competition for these new contracts will be fierce. While a timeline for the bidding process has not been announced, if the Agency for Health Care Administration (“AHCA”) follows the same timeline as it did for the prior bidding, we can expect an initial press release requesting non-binding letters of intent in September or October of this year, with the actual Invitation to Negotiate (“ITN”) being issued in April or May of 2022. Given the amount of money at issue on these bids and the expected amount of competition, if you are considering bidding on one or more of these contracts, now is the time to start preparing.

Further, given what is at stake, bid protests over the award (and the specifications) are almost a given. While our article on bid protests covers this issue in more detail and can be found here, there are a few key things you should know about bid protests if you are considering bidding on the SMMC contracts. The first issue is specification challenges. Specification challenges are challenges to the terms, conditions, or specifications contained in the solicitation (including any provisions governing the methods for ranking bids, awarding contracts, reserving rights for further negotiation, or modifying or amending any contract). If a potential bidder wished to make a specification challenge, a notice of protest must be filed within 72 hours after posting of the solicitation. Failure to timely file this notice of protest will result in waiving any challenges that the specifications were biased, unclear, or otherwise deficient. The second issue arises after an award (or intended award) is posted. Any eligible person who wishes to challenge the award (or intended award) must file a notice of protest within 72 hours of the posting. These timelines, like the other timelines discussed in the linked article, are strict deadlines and failure to meet them will likely result in a waiver of your right to protest.

BID PROTEST LAW CASE NOTE: THE CLOCK IS STILL TICKING; WAIVER OF RIGHTS FOR FAILURE TO FILE TIMELY NOTICE OF PROTEST

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: geoff@smithlawtlh.com.

Overview of Federal Bid Protests

Background

Under federal law, a bid protest is a written objection by an “interested party” to the conduct of a federal agency in acquiring supplies or services for its own direct use or benefits. Congress authorizes bid protests in three separate forums, as discussed below.

Standing

To file a bid protest, the protestor must demonstrate standing as an interested party. A protestor challenging the terms of a solicitation must be an actual or prospective offeror “whose direct economic interest would be affected by the award of the contract or by failure to award the contract.” See 31 U.S.C. §3551(2)(A). A protestor challenging an agency’s decision generally must also demonstrate that it would be next in line for an award but for the agency error or that it would regain the opportunity to compete if its protest was sustained. [Note: Given their lack of “direct economic interests,” subcontracts on federal contracts generally lack standing to bring a GAO protest unless the contracting agency has requested that GAO hear such protests.]

Forum Selection

A contractor challenging a federal procurement may generally choose to file a bid protest before:

the agency administering the procurement,
the Government Accountability Office (GAO), or
the United States Court of Federal Claims (COFC).

Agency Administering the Procurement

Pre-award protests must be filed with the federal procuring Agency prior to the Agency’s receipt of the initial proposals, which would typically be before the “deadline” for bidders to submit their proposals. Post-award protests must be filed within 10 days after discovery of the claim, meaning when the basis of the protest is known, or should have been known, by the contractor.

Pre-award Debriefing of Offerors: Offerors excluded from the competitive range or otherwise excluded from the competition before award may request a debriefing before award within 3 days after receipt of the notice of exclusion from the competition. Debriefings may be done orally, in writing, or by any other method acceptable to the contracting officer. FAR 15.505.

Post-Award Debriefing of Offerors: An offeror, upon its written request received by the agency within 3 days after the date on which that offeror has received notification of contract award, shall be debriefed and furnished the basis for the selection decision and contract award. Debriefings may be done orally, in writing or by any other method acceptable to the contracting officer. The debriefing should occur within 5 days after receipt of the written request. FAR 15.506.

The process for filing a protest with the procuring Agency varies among the agencies, but obtaining a decision on the claim is fairly quick and inexpensive compared to the other forums.

The basic framework for Agency protests is outlined in FAR 33.103, which simply requires that the Agency provide for a procedurally simple, informal and expeditious resolution to the protest. In fact, parties are encouraged to use their best efforts to resolve concerns raised by an interested party at the contracting officer level “through open and frank discussions” prior to the submission of an agency protest. FAR 33.103(b). If filed, the protest must be concise and logically presented to facilitate review by the Agency. Along with basic identifying information about the protester and the solicitation or contract number, protests must contain a detailed statement of the legal and factual grounds for the protest, copies of relevant documents, request for an Agency ruling and the type of relief requested, and information which establishes standing and timeliness to file the protest.

Upon receipt of a protest before award, a contract may not be awarded, pending agency resolution of the protest, unless contract award is justified, in writing, for urgent and compelling reasons or is determined, in writing, to be in the best interest of the Government. FAR 33.103(f)(1).

Upon receipt of a protest within 10 days after contract award (or within 5 days after a debriefing date offered to the protester under a timely debriefing request) the contracting officer shall immediately suspend performance, pending resolution of the protest within the agency, unless continued performance is justified, in writing, for urgent and compelling reasons or is determined, in writing, to be in the best interest of the Government. FAR 33.103(f)(3).

Agencies are required to make best efforts to resolve a protest within 35 days of filing, and the process is the most informal of all bid protest procedures. An important benefit to an Agency filing is that it triggers an automatic stay of the award or performance of the contract. However, please note that a stay can be overridden upon a written determination of compelling need by the Agency.

The downside to filing a protest directly with the Agency is that the complaint is generally heard by the same person (the Procuring Contract Officer or some other Agency head) who initially developed the flawed specification, instruction or made the award selection. Notwithstanding this apparent lack of independent review, be advised that a few agencies require a protester to file its protest first with the procuring Agency before the protest can be heard in another forum (e.g., U.S. Postal Service).

Government Accountability Office (“GAO”)

Filing a protest with the GAO appears to have many of the benefits of filing with the procuring Agency, but offers a review of the matter by an independent government official who is not associated with the procuring Agency. The GAO reviewer is likely to have more experience and insight into the specific issues of the protest than an Agency officer.

GAO review is not as quick or inexpensive as an Agency review. Also, there are formal procedures that must be followed for filing a protest with the GAO, as outlined in 4 C.F.R. part 21. Protests must be in writing and addressed as follows:

Attention: Procurement Law Control Group

General Counsel

Government Accountability Office

441 G Street, NW.

Washington, DC 20548.

A protest filed with GAO shall:

(1) Include the name, street address, electronic mail address, and telephone and facsimile numbers of the protester,

(2) Be signed by the protester or its representative,

(3) Identify the agency and the solicitation and/or contract number,

(4) Set forth a detailed statement of the legal and factual grounds of protest including copies of relevant documents,

(5) Set forth all information establishing that the protester is an interested party for the purpose of filing a protest,

(6) Set forth all information establishing the timeliness of the protest,

(7) Specifically request a ruling by the Comptroller General of the United States, and

(8) State the form of relief requested.

No formal briefs or motions are required. A complete copy of the protest must be provided to the procuring Agency within one day of filing the protest with the GAO.

Timing of Filing Protests

The timing requirements are similar to the Agency requirements. Pre-award protests relating to the solicitation or instructions must be filed before the date of proposal submissions for all bidders. All other protests must be filed within 10 calendar days after the basis of the protest is known, or should have been known (whichever is earlier), with the exception of protests under which a debriefing is requested and held. In such cases, the initial protest shall be filed not later than 5 days after the date on which the debriefing is held. Protests filed after these deadlines are untimely and the GAO generally dismisses them.

GAO Notice to Agency

Once a protest is filed with the GAO, the GAO is required by statute to notify the federal agency whose contracting activities are being protested within one working day of receiving the protest. See 31 U.S.C. §3553(b)(1). This GAO notice to the Agency: 1) marks the beginning of an automatic stay of the award or performance of the contract that lasts for the duration of the protest (agencies may, however, override these stays upon determining that “urgent and compelling circumstances” will not permit waiting for the GAO’s decision or where “performance of the contract is in the best interests of the U.S.”), and 2) marks the beginning of the 30-calendar day period within witch the agency must generally respond to the GAO protest. See 31 U.S.C. §3553(b)(2)(A).

Agency’s Response and Protester’s Reply

Within 30 days of being notified of a GAO bid protest, the Agency must file a report including a statement of relevant facts, memorandum of law, and relevant documents. The Agency can avoid filing this report only when it requests and is granted dismissal of the protest before the report is due. After the agency’s report is due, the protester has 10 calendar days to submit written comments on the agency’s report to the GAO. If protester fails to submit such documents, GAO is required to dismiss the protest.

GAO’s Decision

GAO allows protestors to avoid costs of traveling to DC, where GAO is located, by providing for the resolution of protests based upon documents filed by the protestor and the agency, as opposed to in-person hearings. Hearings are relatively rare in GAO protests.

GAO generally is required to issue its final decision within 100 calendar days of the protest’s filing. This timeframe can be shortened to 65 days if GAO determines, either upon request or its own initiative, that the protest be treated under the “express option.”

When deciding a protest, GAO does not substitute its judgment for the agency’s, or conduct de novo review; rather, it considers only whether the agency complied with procurement statutes or regulations, and had a reasonable bases and adequate documentation for its decision making. See, e.g., 31 U.S.C. §3552(a).

GAO may recommend to dismiss, deny, or sustain a protest. GAO recommendation is provided to the procuring agency, which has 60 days to adopt the GAO recommendations. The agency is not legally required to implement the recommendations in the GAO’s decision. However, agencies typically fully adopt GAO recommendations, as failure to do so results in a report to Congress by the GAO.

If the GAO determines that a solicitation or contract award does not comply with a statute or regulation, it may issue a recommendation that the Agency pay the protester its costs, including reasonable attorney fees, consultant fees and expert witness fees, as well as bid and proposal preparation costs.

A GAO protest can provide a second chance for relief to a protester. If a protester first files with the procuring Agency and was denied relief, the protester can then file a protest with the GAO within 10 days after the protester learns of any adverse ruling by the Agency. 4 C.F.R. section 21.2. In addition, protestors disappointed with GAO’s decision can seek reconsideration from GAO or file a bid protest with the United States Court of Federal Claims.

For detailed information on GAO Bid Protests, see GAO Bid Protests: An Overview of Time Frames and Procedures, Congressional Research Service (Jan. 19, 2016). See also https://www.acquisition.gov/far/html/Subpart%2033_1.html.

United States Court of Federal Claims (“COFC”)

A protester also has the option to file its bid protest in the United States Court of Federal Claims (“COFC”). Procedures for protests at the COFC are governed by the Rules of the United States Court of Federal Claims, which can be found at: http://www.uscfc.uscourts.gov/rules-and-forms. The specific procedures governing bid protests may be found at Appendix C, Procedure in Procurement Protest Cases Pursuant to 28 U.S.C. 1491(b). Additionally, the Federal Rules of Evidence apply to COFC proceedings.

The COFC is located in the District of Columbia, although the COFC has national jurisdiction and may hold court at other places as it may prescribe by rule of Court. See 28 U.S.C.A. §173. For those unable to travel to Washington, DC, parties may file a motion to participate in proceedings by telephone or videoconferencing. The COFC is comprised of sixteen active judges, nominated by the President, and several senior judges. In COFC cases, the Department of Justice (DOJ) represents the Government. Individuals may represent themselves pro se, but COFC requires that any corporation or partnership be represented by counsel admitted to the COFC’s bar to practice before the court.

In accordance with the Rules of United States Court of Federal Claims governing bid protests, plaintiff’s counsel must provide at least 24-hour advance notice of filing a bid protest to: (1) the Department of Justice, Commercial Litigation Branch, Civil Division; (2) the Clerk, United States Court of Federal Claims; (3) the procuring agency’s contracting office; and (4) the successful bidder/offeror. See Rules of the United States Court of Federal Claims, Appendix C, Procedure in Procurement Protest Cases Pursuant to 28 U.S.C. 1491(b), at II.2(a). This pre-filing notification requirement must include, but not be limited to, the following: the name of the procuring agency and number of the solicitation; the name and number of the contracting officer, the principal agency attorney, if any, who represented the agency in any prior protest of the same procurement; whether the plaintiff intends to seek injunctive relief; and whether the action was preceded by a protest before the GAO.

One of the biggest advantages to filing with the COFC is that it has full powers of authority to bind the procuring Agency to decisions. Another advantage is that a protester can use the COFC as a “last resort” after receiving negative rulings from an Agency and/or GAO protest. The converse is not true, as a protester who first files with the Court of Federal Claims and receives an adverse ruling cannot then file with the procuring Agency or GAO.

COFC judicial review of agency actions in bid protest cases is limited to the administrative record. The COFC reviews agency decisions under the Administrative Procedure Act (“APA”) standard. See Choice of Forum for Federal Government Contract Bid Protests, 18 Fed. Circuit B.J. 243 (2009), at 21-22. The court determines whether the agency action was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law based solely upon the administrative record. 28 U.S.C. § 1491(b)(1), (4); 5 U.S.C. § 702, 706(2)(A); see also Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1332 (Fed.Cir.2001); CW Gov’t Travel, Inc. v. United States, 110 Fed. Cl. 462, 479 (2013).

Timeliness standards for filing protests at the COFC are more relaxed as well. Unlike the Agency and GAO strict time requirements, post-award protests can be filed with the Court of Federal Claims any time after the award provided that any delay in bringing the protest is not unreasonable, inexcusable or otherwise prejudices the Government or other parties. Software Testing Solutions, Inc. v. United States, 58 Fed. Cl. 533, 535 (2003). In addition, in accordance with 28 U.S.C. §1491(b)(1), the COFC “shall have jurisdiction to entertain such an action without regard to whether suit is instituted before or after the contract is awarded.” That said, the doctrine of laches may be invoked as an affirmative defense in the context of a bid protest before the COFC. See Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308, 1314–14 (Fed.Cir.2007); see also Software Testing Solutions, Inc. v. U.S., 58 Fed.Cl. 533, 536 (2003). See Nat’l Telecommuting Inst., Inc. v. United States, 123 Fed. Cl. 595, 602 (2015). COFC cases have held that a “plaintiff cannot sit on his rights in bringing a bid protest while the Government moves forward with a contract.” See, e.g., Benchmade Knife Co. v. United States, 79 Fed.Cl. 731, 737 (2007) (citing Blue & Gold Fleet, 492 F.3d at 1314). In a recent COFC case, the Court, in determining that plaintiff’s six-month delay in bringing its bid protest was untimely, stated:

“[T]his Court has found a “strong argument in favor of applying laches” when a plaintiff chose to wait two months to file suit because he was weighing the cost of litigation. Software Testing Solutions, Inc. v. United States, 58 Fed.Cl. 533, 536 (2003). In this case, NTI waited more than three times as long to bring this bid protest.” Nat’l Telecommuting Inst., Inc. v. United States, 123 Fed. Cl. 595, 602 (2015).

While the post-award timeliness standard is clearly less restrictive than that of the GAO and Agency requirement, the pre-award time requirement is comparable to the other forums: before the close of bidding.

The downside to the COFC forum is that protests can be more costly and time consuming than Agency or GAO protests. However, in many cases, this forum offers the most due process protections to the protester because the Court adheres to the Federal Rules of Civil Procedure, can issue injunctive and equitable relief, and allows the parties to engage in discovery and file motions for summary judgment.

Another significant disadvantage to filing a protest in the Court of Federal Claims is the lack of an automatic stay of the award or performance on a contract award. Even though a protester files a protest, the Agency can continue moving forward with the procurement and contracting process absent an injunction by the Court to stop until the protest is resolved. For this reason, a protester should immediately request the Court to issue a stay on the Agency’s procurement process when the initial protest is filed.

Brief Overview of Some Comparisons Between the Different Forums

(See http://www.acc.com/legalresources/publications/topten/ttegcskabp.cfm)

Agency-level protests typically offer the least expensive and quickest resolution for a disappointed offeror, followed by GAO protests, and then COFC protests.

For agency-level protests, the Federal Acquisition Regulation (FAR) requires agencies to use best efforts to resolve a protest within 35 days after the protest is filed, although some agencies have implemented their own rules requiring shorter timeframes for resolution. The GAO has 100 days after the initial filing of a protest to issue its decision. By contrast, there are no time constraints on COFC’s authority to resolve bid protests.

Because none of these forums hold appellate jurisdiction over the others, a protestor who is unsatisfied with the result of a protest may re-file the protest in a different forum. For example, a protestor disappointed with the outcome of a GAO protest may be able to file a COFC protest. However, a protestor that files first at the COFC cannot later file a GAO protest based on the same issue. Thus, disappointed bidders may want to start with an agency-level or GAO protest before going to the COFC.

Although agency-level protests may be relatively quick and inexpensive, they also have significant disadvantages compared to GAO and COFC protests. For example, agency-level protestors have no right to discovery. By contrast, GAO and COFC protests require limited discovery, which means agencies must produce an agency report or administrative record containing all documents relevant to the protest. Further, in some cases, a COFC protest may allow for additional discovery (e.g., depositions).

Another important distinction between agencies, GAO, and the COFC, is the difference in remedies available to a disappointed bidder. While agencies and GAO have limited authority and only can issue recommendations, the COFC has the power to enforce its judgments. Although this distinction has the potential to significantly impact forum selection, as a practical matter agencies generally follow GAO’s recommendations.

One significant advantage offered by GAO protests is the availability of an automatic stay of contract award or performance under the Competition in Contracting Act (“CICA”) (commonly referred to as a CICA stay). To obtain a CICA stay, the protestor only needs to file its protest within 10 days of the contract award or within five days of its debriefing. In contrast, CICA stays are not available in COFC protests. COFC may stay contract award or performance through granting injunctive relief, although grants of injunctive relief require the protestor to satisfy a relatively high standard and post security.

Local Bid Protests – You Can Fight City Hall: Protesting Your County, Municipality, or District, Procurement Decisions

Introduction

This article provides a brief overview of local government bid protest procedures. Unlike the state bid protest process, which is primarily governed by Florida state statutes and rules¹, and is discussed at length in our previous article, “Bid Protests: Know Your Rights – the Clock is Ticking” at http://smithlawtlh.com/bid-protests-know-your-rights-the-clock-is-ticking/ (“State Bid Protest article”), the bid protest procedures for local government entities (counties; municipalities — cities, towns, villages; special districts) vary with each particular local authority.

In Florida, there are 67 counties, 282 cities, 109 towns, 19 villages, and over 1600 Special Districts², and there is no uniform process or procedure for challenging the procurement decisions of each local entity. While the same substantive arguments typically raised in state agency bid protests (e.g., non-responsive bids, non-responsible bidder issues, bias/favoritism, arbitrary scoring, ex-parte communications)³, can often be raised when challenging local government entity decisions, the procedural process and timing for local government entity bid protests is not controlled by state statutes.⁴ Instead, the process varies for each county, municipality, and special district, depending on their individual authorizing charters, ordinances, procurement codes, and policies.

Some local government entities expressly adopt or follow, in whole or in part, the state procurement process and state procedures for challenging bid awards⁵, but more often the local government entities create their own procurement process and procedures, which are governed by their individual charters, ordinances, rules, as well as by their specific bid proposals (e.g., ITB, RFP specifications). In addition, judicial precedents and Florida’s strong public policy in favor of fair competition (discussed briefly below, and in more detail in our State Bid Protest article) provide avenues for challengers to contest unfair and arbitrary bid award decisions.

No Uniformity: Examples of Various Local Government Entity’s Bid Protest Procedures

As discussed at length in our prior State Bid Protest article, there is a uniform and rather straightforward bid protest process for challenging state agencies: the timeframe for bringing a notice of protest challenging a state agency’s bid solicitation specifications is 72 hours from date of posting of award, and the protester then has an additional 10 days after the notice of protest to file its formal written protest. The timeframes for challenging intended state agency awards are consistent with the timeframes for challenging solicitation specifications: 72 hours from the posting of the contract award to file a notice of intent to protest, and 10 days thereafter to file the formal written protest of intended award.

After receipt of a bid protest, the process thereafter is also relatively straightforward and uniform with regard to state agency bid protests: upon receipt of the formal written protest, the agency shall attempt to resolve the protest by mutual agreement within 7 days. If there is no mutual resolution of the protest within the 7 days after receipt of written protest, and there are disputed issues of material fact, the agency shall refer the protest to the Division of Administrative Hearings for assignment of an Administrative Law Judge to conduct a hearing within 30 days, and shall issue a Recommended Order (RO) within 30 days after the hearing (or within 30 days from receipt of the hearing transcript, whichever is later). Each party shall have 10 days to file written exceptions to the RO, and a Final Order (FO) shall be entered by the agency within 30 days after entry of the RO. See 120.57(3), Florida Statutes.

In contrast, the bid protest process for challenging local government entities is far from uniform and simple, as it varies within each specific local entity. In other words, each county, city, township, district has its own bid protest process.

Below are just a few examples from various county, village, city, and district governing procurement documents in order to demonstrate the complexity and lack of uniformity in local bid protest procedures, and the need for experienced legal counsel to represent vendor interests in any challenge to a local government entity’s competitive bidding process.⁶

County Example: Miami-Dade County

The primary governing procurement document for Miami-Dade County is Implementing Order 3-21, entitled Bid Protest Procedures. See http://www.miamidade.gov/aopdfdoc/aopdf/pdffiles/IO3-21.pdf.

Protests of Solicitation Specifications: Pursuant to Implementing Order 3-21, written protests of solicitation specifications must be brought at least two days prior to the hour of bid opening or will be deemed waived. (“Any question, issue, objection or disagreement concerning, generated by, or arising from the published requirements, terms, conditions or processes contained in the solicitation document shall be deemed waived by the protestor and shall be rejected as a basis for a bid protest, unless it was brought by that bidder or proposer to the attention, in writing, of the procurement agent, buyer, contracting officer or other contact person of the County department that issued the solicitation document, at least two work days (not less than 48 hours) prior to the hour of bid opening or proposal submission.”). Compare to Florida Statutes governing state agency protests, which provides that a “notice of protest” of state agency solicitation specifications shall be made within 72 hours of the posting of the solicitation, and the “formal written protest” shall be filed 10 days after the “notice of protest.”

Protest of Intended Contract Award: With respect to formal (concerning contract award amounts over $250,000) and informal (concerning contract award amounts between $25,000 and $250,000) bid protests of intended contract awards, bidders/proposers may protest an award recommendation by filing a written intent to protest within three work days of the filing of the award recommendation. The bidder/proposer must then file its formal written protest (including all pertinent documents and supporting evidence) within three work days after the filing of the intent to protest. (Compare section 120.57(3)(b), Florida Statutes, regarding protest deadlines for challenging state agency awards, which provides that the notice of protest must be filed 72 hours from the posting of the notice of intent, and the formal written protest must be filed within 10 days after the date the notice of protest is filed).⁷ Thus, Miami-Dade County’s timeframes for filing a written protest significantly differ from those outlined in Florida Statutes regarding challenging state agency decisions, and failure to adhere to the more stringent timeframes in the local administrative order may result in waiver of the right to protest.

The protest shall be filed with the Clerk of the Board of the County Commission, and, depending on the intended contract award amount, may thereafter be referred to a hearing examiner appointed by the Clerk of the Board within 5 days after the filing of the written protest, and, if so referred, a hearing will be conducted within 10 days thereafter. The hearing examiner will issue a Recommended Order (RO) within 5 days of the hearing.

Hearing Process Dependent on Contract Award Amount: Depending on the contract amount in question, the hearing process proceeds differently. Intended contract award bid protests concerning expenditures over $250,000 and that exceed the county manager’s delegated authority, proceed as follows: the hearing examiner’s findings and recommendation shall be presented to the Commission by the County Manager together with the recommendation of the County Manager. If the hearing examiner’s recommendation concurs with the County Manager’s recommendation, the Commission shall not allow presentations by participants at the time the matter is presented to the Commission, and a 2/3 vote of the Commission shall be required to take action other than that which was recommended. If the hearing examiner does not concur in the County Manager’s recommendation, the participants in the competitive process and their representatives may make presentations to the Commission and the Commission shall decide the matter by majority vote.

In contrast, protests where the amount in question is over $250,000 but does not exceed the County Manager’s delegated authority, proceed as follows: if the hearing examiner concurs in the award recommendation of the Department of Procurement or other issuing department, the department shall be bound thereby and shall implement such recommendation within 5 days. If the hearing examiner does not concur in the award recommendation, the Director of the Department of Procurement Management or of the issuing department shall either accept the hearing examiner’s recommendation and implement such recommendation with 5 days, or shall submit a written recommendation to the County Manager with 5 days stating the reasons why the County Manager should approve the department’s recommendation, despite the hearing officer’s recommendation, and the County Manager shall, within 5 days, choose either the department’s or the hearing examiner’s recommendation and instruct the department to implement such recommendation.

For intended contract awards under $250,000 but over $25,000, the procedure is as follows: the issuing Department Director shall review the protest, and after consultation with the County Attorney, shall issue a report and recommendation within 20 days of the filing of the protest stating the Department’s recommendation. The Department Director’s findings shall be forwarded to the County Manager for final determination and disposition of the protest. There will be an opportunity to settle the protest within 5 days of the filing of the protest.

In addition to Implementing Order 3-21, Miami-Dade County’s procurement process is governed by its Charter and County Code, specifically section 2-8.4 of the Code of Miami-Dade County, entitled “Protest Procedures.” (See http://miamidade.fl.eregulations.us/code/cid10620/2-8.4/) Moreover, all county vendor contracts in Miami-Dade County are subject to the General Terms and Conditions found at: http://www.miamidade.gov/procurement/library/boilerplate/general-terms-and-conditions.pdf.

Municipality Example: The Village of Wellington’s (“Wellington”)

The Village of Wellington’s procurement process is governed primarily by its Purchasing Manual, as well as by the requirements outlined in the specific ITB/RFP at issue. The Purchasing Manual establishes specific directions, guidelines and requirements for purchasing, and states that all purchases “shall be in accordance with this Manual…” (See Purchasing Manual at http://wellingtonfl.gov/images/stories/departments/Purchasing/docs/Code_and_policy/Final%20Purchasing%20Manual%202014.pdf.)

With regard to ranking bids, Wellington’s Purchasing Manual specifies the criteria to be used to decide a tie if two or more bids are tied. One factor that may be considered is the date and time that the bid was received by Wellington. In other words, if there’s a tie, and if other specified criteria do not resolve the tie, Wellington will consider which bid was received first in awarding the contract. These types of details and nuances specific to each locale are very important for vendors to be aware of prior to submitting their bids, as they may very well impact the outcome of the award.

Protests of Solicitation Specifications: With regard to protesting solicitation specifications, Wellington’s purchasing manual provides that prospective bidders must file its written protest to the solicitation within three days after the advertising/posting of the competitive solicitation. (“A prospective bidder, proposer or offeror may submit a protest in writing to the Purchasing Manager challenging the terms, conditions, or specifications of a competitive solicitation, including any provision governing the methods for ranking bids, proposals, or replies, awarding contracts, reserving rights of further negotiation, or modifying or amending any contract…. The protest must be filed in three (3) days . . . after the public posting… Failure to file a protest as to the terms, conditions, or specifications of a competitive solicitation shall be deemed a waiver of the right to protest on those grounds.”). Compare Florida Statutes, which provides that only a “notice of protest” to a solicitation specification must be filed within three days, and that the formal written protest may be filed ten days thereafter.

Protest of Intended Contract Award: Similarly, Wellington’s procedure for challenging an intended award of a bid contract also requires that the formal written protest be made within three days of the notice of intended award. Again compare Florida Statutes, which provides that only a “notice of protest” must be filed within three days, and that the formal written protest may be filed ten days thereafter.

Thus, Wellington’s truncated timeframes vary significantly from those required pursuant to Florida Statutes governing challenges to state agency solicitation and intended awards. It is crucial that bid proposers are aware of the local government entity’s timeframes, which often vary greatly from those specified in Florida Statutes, in order to ensure that no rights are waived.⁸

Bid Protest Process: The process for Wellington’s bid protests is as follows: the written protest must be submitted to the Purchasing Manager of the Purchasing Division within three days of the notice of intended award. Within 7 days of receipt of the written protest, the Purchasing Manager shall attempt to settle or resolve the dispute, with or without a hearing and within his/her sole discretion, and shall render a written decision. Any person aggrieved by the decision of the Purchasing Manager may appeal to the Village Manager within 7 days from the date of the Purchasing Manager’s decision. The Manager shall attempt to resolve the matter, with or without a hearing and within his/her sole discretion, and shall render a decision within 7 days following receipt of the appeal.

Discretionary Hearing: In the event that either the Purchasing Manager or Manager decides to conduct a hearing, such hearings shall be informal and Florida Rules of Evidence shall not apply. All evidence of a type commonly relied upon by reasonably prudent persons may be considered, and other bidders or proposers who have standing to intervene may be permitted to participate in the hearing.

Appeal to Council: The Manager’s decision shall be final and conclusive unless the protestor files a written appeal directly with Wellington’s Council within 3 days of the Manager’s decision. The Council shall consider the appeal within 30 days, and shall hold a quasi-judicial evidentiary hearing on the appeal. Failure to follow these protest procedures shall nullify any protest.

Special District Example: The Canaveral Harbor Port District (Canaveral Port District).

The Canaveral Harbor Port District (Canaveral Port District), created by the Florida Legislature and encompassing approximately one-half of Brevard County, Florida, is primarily governed by its Charter (Chapter No. 2014-241, Laws of Florida Special Acts of 1953, as amended). (See http://www.portcanaveral.com/PortCanaveral/media/Publications/2014Charter.pdf). The procurement process for the Canaveral Port District is addressed in Article XVII of its Charter, entitled, “Contracts; Competition.” While the Charter briefly discusses the bid proposal process and specifies that competitive bidding shall be enforced when contracts exceed $100,000, it is silent with regard to any procedure or process for challenging bid awards. Thus, those wishing to challenge are left with little guidance regarding the procedure for doing so. Florida Statutes, case law, public policy, the specific ITB or RFP criteria and instructions, and resort to Circuit Court will thus be instrumental in any protest.

Other Non-State Agency Protest Example⁹ – University of North Florida (“UNF”)

In Florida, there are 12 state universities, and 28 community and state colleges¹⁰, and each has its own procurement process. For example, University of North Florida’s procurement process is governed by its Purchasing Regulations, specifically 13.0020R, entitled “Notice and Protest Procedures Related to a University Contract Procurement Process” (See https://www.unf.edu/president/policies_regulations/13-Procurement_Services/13_0020R.aspx), as well as the Board of Governors’ Regulations 18.002 and 18.003.

Protests of Solicitation Specifications: Similar to the bid protest process for state agencies, UNF’s regulations provide that the Notice of Intent to protest a solicitation specification must be filed within 72 hours of the posting of the specification. Failure to timely file within the 72 hours shall constitute waiver of the right to protest proceedings related to the specification. A Formal Protest must be filed within 10 days after filing the Notice of Protest.

Protest of Intended Contract Award: Also similar to the bid protest process for state agencies, UNF regulations provide that a Notice of Protest of an intended contract award must be filed within 72 hours of the posting of the University’s notice of decision or intended decision, and that the Formal Protest must be filed within 10 days after filing the Notice of Protest.

Pursuant to UNF Regulations, the UNF President/President’s Designee may, in response to a Protest of a specification or intended award, terminate the contract procurement process, terminate the solicitation process, and/or reject all bids. If any such action is taken, the Protest shall be automatically dismissed, and the University may, if desired, reinitiate the contract procurement process.

Bid Protest Process: According to UNF Regulations, within 7 days of the filing of the Formal Protest, the University may hold informal discussions with the protester to attempt to resolve the protest by mutual agreement. If no resolution is reached, the protest shall proceed to a summary proceeding presided upon by a University official if there are no disputed issues of material fact, or to a quasi-judicial hearing if there are disputed issues of material fact.

Quasi-Judicial Hearing: If the Formal Protest contains issues of material fact, the President/President’s Designee shall either refer the Formal Protest to an appointed quasi-judicial officer for a quasi-judicial hearing or may forward a request for hearing to DOAH for assignment of an Administrative Law Judge (“ALJ”) to conduct the quasi-judicial hearing (in the same fashion as state agency bid protests). The hearing shall be conducted within forty (40) days after the date the Formal Protest was filed. The quasi-judicial hearing shall be a de novo proceeding to determine whether the University’s decision or intended decision is contrary to the statutes, regulations, or policies governing the University, or contrary to the Specifications. The standard of proof for the proceedings shall be whether the proposed University action was clearly erroneous, contrary to competition, arbitrary, or capricious.

All parties have an opportunity to present evidence; to respond to all issues involved; to conduct cross-examination and submit rebuttal evidence; and to submit proposed findings of fact and proposed orders. The hearing shall be conducted in conformity with the Florida Rules of Civil Procedure and the Florida Rules of Evidence. The Quasi-Judicial Officer will issue a written Recommended Order, and the University President shall thereafter issue a Preliminary Order, to which the parties may file objections, after which the President will review any timely filed objections and render a Final Order.

Judicial review of the University’s final decision shall be in accordance with Florida Rules of Appellate Procedure Rule 9.190(b)(3), applicable to review of quasi-judicial decisions of an administrative body not subject to the Administrative Procedure Act. A request for review may be made by filing a petition for certiorari review with the appropriate circuit court within thirty (30) days after the University’s final decision. Failure to seek timely review shall constitute a waiver of the right to appeal the University’s final decision.

It is clear from just the few examples highlighted above that there are no uniform timeframes or procedures for challenging local government entity procurement solicitation specifications and intended decisions, and that the procedures for challenging a local government entity’s procurement process are often extremely complex, and entirely dependent upon the local government entity’s governing procurement documents.

In addition to the different timeframes for bringing protests, each local entity’s governing purchasing documents may vary in terms of the contract amount that is subject to competitive bidding¹¹, and the specific steps for protesting – the who, what, where, and how of protesting solicitations and intended awards (e.g., who does it need to be submitted to, who reviews the challenge, who do you appeal your challenge to; what information is required to be included, what information are you entitled to include; where should it be submitted, where do you appeal; and how do you ensure you exhaust your administrative remedies).

Typical Process in Local Government Bid Protests Despite Lack of Uniform Procedures

Overview

Despite the many procedural differences in each locale, the typical protest process pursuant to most local government procurement codes involves submitting a written protest to the local government’s administrative procurement staff (e.g., the Purchasing Department, the Purchasing Division, Procurement Office), and then appealing up the chain of command if unsuccessful below. Typically, there will be informal attempts to negotiate a settlement once a protest has been filed. Ultimately, most counties, municipalities, and districts will allow for an informal hearing (quasi-judicial hearing) before their Board or Commission. (See below re: quasi-judicial hearing).

Vendors will need to make several strategic decisions along with way. First, they will need to decide if they should challenge the solicitation specification. If they don’t timely object to the solicitation specifications, then they will waive the right to raise such issues later after the intended contract award has been made. However, if they do timely object, they run the risk of possibly offending or ultimately being disfavored by the local entity that they are protesting, and thus putting themselves in a vulnerable position vis-à-vis ultimately being awarded the contract.

Additionally, vendors will need to decide if and when to file suit in circuit court. Depending on the facts and the local government procurement procedures, it may be prudent to file in circuit court prior to any final decision by the Commission. See Wood-Hopkins Contracting Co. v. Roger J. Au & Son, Inc., 354 So. 2d 446, 448 (Fla. 1st DCA 1978). Conversely, depending on the facts and the likelihood of being successfully awarded the contract, it may be more beneficial to wait until after the Commission renders its final decision, and then if adverse, to seek a circuit court injunction or petition for writ of certiorari. (Silver Exp. Co. v. Dist. Bd. of Lower Tribunal Trustees of Miami-Dade Cmty. Coll., 691 So. 2d 1099, 1102 (Fla. Dist. Ct. App. 1997) (holding that unsuccessful bidder’s circuit court action to enjoin College’s contract award to another contractor should have been granted due to the irreparable injury caused by College’s violation of sunshine laws).

What to do – Step by Step

The first step in determining whether to protest is to be sure to familiarize yourself with the local authority’s governing purchasing documents, ordinances, charters, etc., as well state statutes and relevant case law, in case the documents are silent on various procedures.

Next, once you are notified of a solicitation/intended award that you think is improper, it is crucial to act quickly and submit your protest so as not to miss any deadlines and waive any rights. It is imperative to follow the specific protest procedures outlined by the local entity’s governing documents.

Challenge to Bid Solicitation Specifications: Most local government procurement documents specify the timeframes and procedures for challenging bid solicitation specifications, and provide that the failure to timely file a protest to the specifications of a bid solicitation shall preclude the protester from raising those issues in a bid protest after the contract has been awarded. (For example, Miami-Dade County provides that a protest to solicitation specifications must be made 2 days prior to bid opening or are waived, at IO 3-21; The Village of Wellington provides that a protest to solicitation specifications must be filed within 3 days of the posting of the competitive solicitation, and that failure to do so shall be deemed a waiver of the right to protest on those grounds.).

Thus, if a bidder wishes to challenge the terms, conditions, or specifications contained in the solicitation (including any provision governing the methods for ranking bids, awarding contracts, reserving rights for further negotiation, or modifying or amending any contract) the protest to the solicitation must be timely filed in accordance with the local governing procurement documents, typically within a few days of the posting of the solicitation.

While it is illegal in competitive bidding for a local government entity to tailor bid criteria or specifications in favor of a preferred vendor, it is a fairly frequent problem in public procurement.¹² If a vendor believes that any part of the solicitation is suspect, it must timely file the required protest pursuant to the local governing procurement documents or the issue is forever waived.

One of the most common problems in public procurement – whether local or state procurement – is that a vendor fails to timely challenge the bid specifications or criteria although the vendor believes that a particular criteria or specification is unfair, unnecessary, or one that the vendor simply cannot meet. A vendor might forego challenging a specification in an effort to remain on good terms with the local authority out of fear that an action may potentially bias the contracting entity against the vendor.

Failure to timely file a protest to the solicitation specification within the timeframe outlined in the local entity’s governing procurement documents will result in waiver of the right to challenge such specifications. In other words, if they wait until after the notice of intended award, and then file a protest attempting to raise bid specification irregularities, those allegations will be excluded from consideration.

This results in several procedural and tactical questions for the vendor to consider and weigh in consultation with its attorney. Often vendors are concerned that if they protest the solicitation specifications, regardless of the outcome of that protest, that the local entity may harbor resentment or ill will toward them, and fear that the local entity may become biased against them, and that ultimately they will fair less well in any final decision regarding awarding them the contract. These considerations should be discussed and weighed with experienced bid protest counsel.

Challenge to Intended Contract Awards: If the local entity improperly awards the contract to another bidder, vendors shall timely file a protest to the intended contract award in accordance with the local government entity’s procurement code/ordinances. Depending on the local procurement process, the vendor may be required to first file a Notice of Protest and then to follow up with a formal Written Protest. In other locales, the vendor may be required to file the formal Written Protest without any initial Notice of Protest. Intervening holidays and weekends are typically excluded in computing the Notice of Protest due dates and typically included in computing the formal Written Protest due dates, but again, this will depend entirely on the governing local procurement documents.

As discussed above, challenges will typically be filed with procurement administrative staff (Purchasing Department, Procurement Office, etc.), and will be appealed up the chain of command, ultimately concluding in a quasi-judicial hearing before the Commission. Additionally, there will typically be opportunities to informally resolve the protest through settlement negotiations.

Bid Protest Bond: Local government procurement documents typically require, similar to the state agency bid protests, that the protestor file a bond payable to the local government. The amount of the bid protest bond will depend on the local government’s procurement documents. (For example, Miami-Dade County has an escalating bond fee schedule that increases the fee amount based on the contract award amount, ranging from a $500 filing fee for contract award under $250,000 to a $5,000 filing fee for contracts awards over $5 million). Failure to timely file the bond in accordance with the local government procurement process shall typically constitute waiver of the protestor’s right to protest and/or the denial and dismissal of the protest.

Quasi-Judicial Hearing: Unresolved bid protests are typically set for quasi-judicial hearing before the Board or Commission. Depending on the local entity’s procurement process, these hearings may range from informal presentations by the parties and/or their representatives to full-fledged quasi-judicial hearings involving witness testimony, cross-examination, presentation of evidence, and written submissions. Typically the rules of evidence do not apply. Participating parties shall be afforded notice and the opportunity to be heard. Additionally, in a quasi-judicial proceeding certain standards of fairness and due process are afforded to the parties.

Seeking Relief in Circuit Court: Unsuccessful bidders may seek a temporary injunction in circuit court prohibiting the local authority from awarding the contract to the successful bidder. In order to prevail on an injunction in circuit court, the complaining party generally must establish: (1) a likelihood of irreparable harm; (2) the unavailability of an adequate remedy at law; (3) a substantial likelihood of success on the merits; and (4) public interest considerations. See Wood-Hopkins Contracting Co. v. Roger J. Au & Son, Inc., 354 So. 2d 446, 448 (Fla. 1st DCA 1978) (affirming temporary injunction and stating that “trial court was correct in taking action to preserve the status quo and secure the rights of the parties to equitable relief”); Miami-Dade Cnty. v. Church & Tower, Inc., 715 So. 2d 1084, 1087 (Fla. 3d DCA 1998) (affirming denial of temporary injunction and holding that protestor did not have a substantial likelihood of success on the merits); Charlotte County v. Grant Medical Transp., Inc., 68 So. 3d 920 (Fla. 2nd DCA 2011); Silver Exp. Co. v. Dist. Bd. of Lower Tribunal Trustees of Miami-Dade Cmty. Coll., 691 So. 2d 1099, 1102 (Fla. Dist. Ct. App. 1997). See also Naegele Outdoor Adver. Co. v. City of Jacksonville, 659 So. 2d 1046, 1047 (Fla.1995); Smith Barney Shearson, Inc. v. Berman, 678 So. 2d 376, 377 (Fla. 3d DCA 1996).

While there is strong judicial deference afforded to a local authority’s discretion to competitively award contracts, such discretion must not be arbitrary or capricious, illegal, or fraudulent. Emerald Corr. Mgmt. v. Bay Cnty. Bd. of Cnty. Comm’rs, 955 So. 2d 647, 652 (Fla. 1st DCA 2007) (holding county to arbitrary and capricious competitive bidding standard); Hotel China & Glassware Co. v. Bd. of Public Constr. of Alachua Cnty., 130 So. 2d 78, 81 (Fla. 1st DCA 1961) (public authority may not arbitrarily or capriciously discriminate between bidders, or make award on basis of personal preference). However, a local authority’s honest exercise of discretion in awarding a contract will not be overturned even if it appears erroneous or if reasonable persons could disagree. See Miami-Dade Cnty. v. Church & Tower, Inc., 715 So. 2d 1084, 1087 (Fla. 3d DCA 1998) (disappointed bidder’s protest did not show arbitrary or capricious action; thus, bidder failed to demonstrate a substantial likelihood of success in its challenge to the commission decision, and temporary injunction barring further proceeding on the contact was not warranted).

Circuit Court Remedies: It is important to obtain an injunction in circuit court to stop the contract award before the contract is executed and relied upon. While section 120.57(3)(c), Florida Statutes, expressly provides that any intended contract awards shall be stayed pending resolution of a timely filed bid protest¹³, there is no similar uniform requirement for a stay of intended contract awards for local government bid protests. Accordingly, it is very possible that the contract will be awarded and relied upon prior to your “winning” your appeal.

So what happens if the contract has already been executed and then you “win” your appeal? Some courts have held that you are only entitled to the cost of preparing the bid, while other courts have held that the government entity shall provide a comparable contract at a later point in time. To date, no Florida courts have held that an unsuccessful bidder is entitled to lost profits. See Miami Dade Cnty. Sch. Bd. v. J. Ruiz Sch. Bus Serv., Inc., 874 So. 2d 59, 62-65 (Fla. 3d DCA 2004) (reversing award of lost profits and remanding with directions that appellees be awarded equitable relief in the form of future comparable contracts, if possible, or, in the alternative, that their damages be limited to their bid preparation and/or bid protest costs.). See also City of Cape Coral v. Water Servs. of Am., Inc., 567 So. 2d 510, 512 (Fla. 2d DCA 1990) (holding that (1) unsuccessful bidder was entitled to recover bid preparation costs and prejudgment interest thereon when city failed to adhere to its representation that bid would not be rejected on ground that bidder was not licensed general contractor; (2) unsuccessful bidder had no cause of action against public entity for lost profits; and (3) bidder was not entitled to award of attorney fees.); City of Tallahassee v. Blankenship & Lee, 736 So. 2d 29 (Fla. 1st DCA 1999) (disappointed bidder on natural gas line construction project that sued city for disqualification of bid was not entitled to award of attorney fees, despite award of bid preparation costs; there was no contractual or statutory authority for recovery of attorney fees from city and litigation was against city and not third party).¹⁴

Florida’s Public Policy and Case Law in Support of Fair Competition

In addition to the specific protest procedures for each local government entity, government contracting in Florida is guided by strong public policy considerations aimed at the protection of the public against collusive contracts, fraud, bias, and favoritism. While public bodies have discretion in contracting for goods and services, they cannot act illegally, arbitrarily, capriciously, or fraudulently. See, e.g., Wester v. Belote, 103 Fla. 976, 138 So. 721 (Fla. 1931) (laws of this kind requiring contracts to be let to the lowest bidder are based upon public economy, are of great importance to the taxpayers, and ought not to be frittered away by exceptions; they serve the object of protecting the public against collusive contracts and prevent favoritism toward contractors by public officials and tend to secure fair competition upon equal terms to all bidders, they remove temptation on the part of public officers to seek private gain at the taxpayers’ expense, are of highly remedial character, and should receive a construction always which will fully effectuate and advance their true intent and purpose and which will avoid the likelihood of same being circumvented, evaded, or defeated) (emphasis added); Emerald Corr. Mgmt. v. Bay Cnty. Bd. of Cnty. Comm’rs, 955 So. 2d 647, 652 (Fla. 1st DCA 2007) (holding county to arbitrary and capricious competitive bidding standard); Hotel China & Glassware Co. v. Bd. of Public Constr. of Alachua Cnty., 130 So. 2d 78, 81 (Fla. 1st DCA 1961) (public authority may not arbitrarily or capriciously discriminate between bidders, or make award on basis of personal preference); City of Sweetwater v. Solo Constr. Corp., 823 So. 2d 798 (Fla. 3d DCA 2002) (applying arbitrary and capricious standard to RFPs as well as bids). Florida’s public policy, case law, and statutes dictate that competitive procurement, regardless of the local government entity’s bid protest process, is designed to secure fair competition on equal terms to all bidders, to secure the best values at the lowest possible expense, to provide an opportunity for an exact comparison of bids, and to assure that the most responsive bid is accepted. Additionally, government entities must afford fundamental due process rights to its citizens and must allow for a clear point of entry to challenge its decisions. See, e.g., Capeletti Brothers, Inc. v. Dep’t of Transp., 362 So. 2d 346, 348 (Fla. 1st DCA 1978) (holding that agency must afford due process right of clear point of entry to challenge agency decision).

Finally, regardless of the type of local government (county, municipality, district), all local government entities must adhere to the terms of their RFP/ITB, and can be challenged for deviating from the specifications of their RFP/ITB. See, e.g., City of Sweetwater v. Solo Constr. Corp., 823 So. 2d 798, 800, 802 (Fla. 3rd DCA 2002) (City’s award based upon categories and criteria not included in the bid documents was arbitrary, capricious, and contrary to Florida’s competitive bid statutes); Hemophilia Health Services, Inc., v. AHCA, No. 05-2804BID, 2005 WL 3733800, ¶¶ 38-40, 44-46, 75 (DOAH Dec. 2, 2005; AHCA FO Jan. 26, 2005) (evaluation sheets used by evaluators did not correspond to the RFP evaluation criteria); Syslogic Tech. Servs., Inc. v. South Florida Water Mgmt. Vill., No. 01-4385BID, 2002 WL 76312 at ¶¶ 24, 36, 104-05, 108-110 (DOAH Jan. 18, 2002; AHCA FO March 6, 2002 104-111) (scoring was contrary to the RFP and contrary to competition).

Conclusion

Local government bid protest procedures and requirements are often quite confusing and may vary greatly depending on the local government’s ordinances, codes, charters, etc. Because there are no uniform procedures for challenging local government procurement decisions, and because the bid protest process proceeds on an extremely fast track, important rights can be waived if not immediately asserted. For these and other reasons, it is crucial that you know your rights whenever you or your company becomes involved in any local government procurement, and that you involve experienced bid protest counsel as early as possible. Experienced bid protest counsel can assist in compliance with local government bid procedures, ensure that your rights are protected throughout the bid process, timely protest any unfavorable decisions, and advocate for your interests at the local government level, as well as in circuit and appellate court proceedings.

Geoffrey D. Smith is a shareholder in the law firm of Smith & Associates, and has practiced federal, state, and local bid protest law for over 20 years.

¹ Florida Statutes and rules governing state bid protests include, but are not limited to: Chapter 120, Florida Statutes (Florida’s Administrative Procedure Act); Chapter 287, Florida Statutes (state procurement); and Chapter 28-110, Florida Administrative Code (state bid protests).
² http://en.wikipedia.org/wiki/List_of_municipalities_in_Florida; https://dca.deo.myflorida.com/fhcd/sdip/OfficialListdeo/index.cfm.
³ For a detailed overview of the bid protest process for challenging state agency procurement decisions, including a discussion of common grounds for protesting state agency procurement decisions, please see “Bid Protests: Know Your Rights – the Clock is Ticking” at http://smithlawtlh.com/bid-protests-know-your-rights-the-clock-is-ticking/ (“State Bid Protest article”).
⁴ Chapter 120 (the Administrative Procedures Act), Florida Statutes, provides uniform procedures applicable to state agencies, which by definition, do not include local government entities, and section 120.57(3), Florida Statutes, specifically governs bid protests against Florida state agencies. While section 255.20, Florida Statutes, addresses local government competitive bidding for public construction projects, it does not address bid protest procedures. Moreover, there is no Florida Statute governing bid protest procedures for local government procurement of goods or other services.
⁵ See Palm Beach County School Board, Policy 6.14, for an example of a local government entity that explicitly implements the bid protest procedures of the Administrative Procedures Act, section 120.57 (3), Florida Statutes, and Chapter 28-110, Florida Administrative Code.
⁶ Several of the representative examples outlined in this article were taken from recent bid protest cases litigated and resolved by Smith & Associates.
⁷ See §120.57(3)(b), Fla. Stat., and State Bid Protest article, cited infra note 2.
⁸ Such variations from Florida Statutes’ timeframes, are also seen in larger municipalities, such as the City of Miami, whose purchasing process is outlined in its municipal code, Section 18-104, entitled “Resolution of protested solicitations and awards.” (See http://www.miamigov.com/procurement/docs/BidProtest.pdf). Section 18-104 provides that aggrieved proposers must file a notice of protest within two days after receipt of the notice of proposed award, and then must file its written protest within five days after the date the notice of protest was filed. Once again, we see the truncated timeframe for filing a protest at the local level, as compared to protesting state agency procurement decisions. See also Orange County Bid Protest Procedures (Orange County Florida Code of Ordinances, Sec. 17-313), which requires that a notice of protest to a bid solicitation or intended award be filed within five days of the date of posting, and that the formal written protest be filed within five days after the date of the filing of the notice of protest.
⁹ There are competing arguments as to whether Florida state universities and colleges are considered “state agencies” for purposes of Chapter 120 bid protest rights. Section 120.57(3), Florida Statutes, governing state agency bid protest procedures, specifically provides in subsection 120.57(3)(g), Florida Statues, that “the definitions in s. 287.012 apply.” Section 287.012, Florida Statutes, expressly states that the definition of Agency “does not include the university and college boards of trustees or the state universities and colleges.” However, this definition appears to conflict with the definition of “Agency” in section 120.52, Florida Statutes, which provides that “Agency” includes educational units, including state universities when the university is acting pursuant to statutory authority.” Further confusing the issue, bid protests of state universities are routinely referred to DOAH for hearing. See e.g., Schlage Lock Company, LLC v. State University System, University of North Florida, Case No. 14-1559BID (DOAH April 10, 2014). For purposes of this bid protest article, universities and colleges are classified as non-state agencies.
¹⁰ http://en.wikipedia.org/wiki/List_of_colleges_and_universities_in_Florida
¹¹ While Florida State Statutes provides for competitive solicitation for state agencies for all contract awards in excess of $35,000 (hereinafter “competitive solicitation threshold”), the threshold amount requiring competitive bidding varies dramatically for each local government entity depending on its specific local charter, ordinances, code, etc. For example, Miami-Dade County’s competitive solicitation threshold is $25,000 (Miami-Dade County Implementing Order 3-21) (check); University of North Florida Board’s competitive solicitation threshold is $75,000 (UNF Purchasing Regulation 13.0010R); Village of Wellington’s competitive solicitation threshold is $25,000 (Wellington Purchasing Manual, Ch. 2, A, at p. 3); and Canaveral Port Harbor District’s competitive solicitation threshold is $100,000.
¹² One exception to this is that many local governments provide in their governing procurement documents that a preference be given to local businesses. (For example, Miami-Dade County’s governing procurement document provides in its preference for local businesses, that “If the Low Bidder is not a Local Business, then any and all responsive and responsible Local Businesses submitting a price within ten percent of the Low Bid…shall have an opportunity to submit a best and final bid equal to or lower than the Low Bid.” See Miami-Dade County, Section 1.10, General Terms and Conditions). The preference criteria should be outlined in the local government documents and any deviations from the specified criteria can be subject to challenge. Miami-Dade County, Section 1.10, General Terms and Conditions.
¹³ Section 120.57(3) provides:
Upon receipt of the formal written protest that has been timely filed, the agency shall stop the solicitation or contract award process until the subject of the protest is resolved by final agency action, unless the agency head sets forth in writing particular facts and circumstances which require the continuance of the solicitation or contract award process without delay in order to avoid an immediate and serious danger to the public health, safety, or welfare. § 120.57(3), Fla. Stat. See also Cianbro Corp. v. Jacksonville Transp. Auth., 473 So. 2d 209, 212 (Fla. 1st DCA 1985) (statutory scheme providing for stay of intended contract award “should be upset in only the most compelling circumstances.”).
¹⁴ While beyond the scope of this article, for a detailed discussion of potential legal remedies after you have been awarded a contract, see http://smithlawtlh.com/unfairness-or-public-corruption-in-government-contracting/.

With Bid Protests, Deadlines are Essential

Recently, the GAO denied the bid protest of Bridges System Integration, LLC (“Bridge”) (decision here). This bid protest involved an RFP for a standing solicitation for the provision of professional audio/video, telemetry/tracking, recording, reproducing and signal data solutions. Bridge’s bid was rejected for not complying with the RFP. While there were multiple issues involved in this decision, this article focuses on Bridge’s challenge to the terms of the solicitation as they related to its already submitted and rejected bid.

The GAO held that “[t]o be timely, a challenge to the terms of this solicitation had to be raised prior to submitting a proposal under the terms of that solicitation.” It further held that for standing orders, which do not have a set time for submissions, “challenges to the terms of a standing FSS solicitation are untimely, with respect to the application of these terms to the evaluation of an offeror’s proposal, if the protest is filed after the protester has submitted a proposal under that solicitation.” For this, and other reasons enumerated in the decision, the bid protest was denied.

Timelines are key to bid protest cases. Failure to timely file a bid protest can forfeit your rights to even bring the protest. If you believe that the specifications for an RFP are biased or unfair, contact the experienced bid protest attorneys at Smith & Associates for a free consultation.