Tag Archives: Bid Protest

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.

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.

Government Must Look at Bidder’s Unique Approach When Evaluating Bids

Last week the GAO issued a recommendation in the Matter of: Alcazar Trades, Inc.; Sparkle Warner JV, LLC. The Government issued an RFP for a fixed-price contract, with a 1-year base period and four option years, to furnish custodial services for 23 buildings and 7 guard shacks at the Denver Federal Center. The award was to be made to the bidder whose proposal was the “most advantageous to the government,” considering price and the following non-price evaluation factors: management plan (30 percent of the non-price factors), past performance (30 percent), and experience (40 percent). Alcazar Trades, Inc. (“ATI”) submitted the bid with the lowest price. The government found that ATI’s bid was unrealistic such as to “put the government at risk if the Offeror tried to perform the services with inadequate funding.” ATI then filed this bid protest.

The GAO found that as a general matter “[p]rice realism need not necessarily be considered in evaluating proposals for the award of a fixed-price contract, because these contracts place the risk of loss upon the contractor rather than the government.” The GAO further held that “[w]here offerors take a similar approach to meeting the solicitation requirements, our Office has generally not objected to a price realism analysis that focuses on a comparison of an offeror’s price to the government estimate and the prices of other offerors… Our Office has recognized, however, that a price realism evaluation must consider the unique technical approaches proposed by each offeror.” ATI argued that its staffing approach was unique and was not comparable to the other bidders, as such, it was able to offer a much lower price. The GAO agreed and concluded that the government “unreasonably evaluated the realism of ATI’s low price, failing to account for ATI’s unique staffing approach.” It then recommended that the government reevaluate the proposals and reimburse ATI its attorney’s fees and costs.

If you believe that your bid response has been improperly evaluated, contact the experienced bid protest attorneys at Smith & Associates for a free consultation.

GAO’s Bid Protest Decision Breathes New Life Into Protester’s Bids

Last week, the GAO issued a decision in The Matter of Al Raha Group for Technical Services,Inc.; Logistics Management International, Inc. The Air Force issued an RFP for F-15 fighter jet transportation support services. In response, it received 7 proposals. These proposals would be evaluated based upon three factors: technical; past performance; and cost/price. All seven bidders received “Acceptable” scores with regards to the technical factor. Logistics Management International, Inc (“LMI”) and Al Raha Group for Technical Services, Inc. (“RGTS”) submitted the two lowest bids respectively with regards to price, with SupplyCore coming in third. However, both LMI and RGTS recieved a “Limited” score on the Past Performance Confidence factor. Due to this, the Air Force awarded the bid to SupplyCore and LMI and RGTS filed a bid protest.

The GAO held that the Air Force failed to evaluate SupplyCore’s past performance in accordance with RFP requirements. It further held that the Air Force failed to meaningfully consider available agency information regarding LMI’s past performance of similar requirements for the Air Force, and therefore sustained LMI’s bid protest. However, the GAO held that the Air Force did not unreasonably ignore or contradict RGTS’s CPARs, rely on adverse past performance information, or ignore relevant past performance information not yet captured in a final, formal CPAR.

Based upon these holdings, the GOA recommended that the Air Force reevaluate offerors’ past performance information and, based on that reevaluation, it recommended that the agency make a new source selection determination. Finally, it recommended that the agency reimburse the protesters their respective costs associated with filing and pursuing their protests, including reasonable attorneys’ fees.

If you believe that your bid has been improperly scored, contact the experienced bid protest attorneys at Smith & Associates for a free consultation.

Bid Protest Are Not Only for the Lowest Bidder

Orange County recently requested bids for its trash collection service. FCC Infrastructure responded with the lowest bid across the board. Now, two other bidders, Waste Pro and Florida Republic, are protesting the award of the contract to FCC. While the details of the case are still forthcoming, this news article contains some details of the issue and statements from each of the bidders.

According to Waste Pro and Florida Republic, FCC was able to get the lowest bid because they did not properly bid the project. According to a Waste Pro representative, FCC’s bid would require it to do with one truck what Waste Pro would need ten trucks to do. In essence, Waste Pro is arguing that, while FCC was the lowest bidder, it was not the lowest responsible bidder.

Public authorities are required to award bids to the “lowest responsible bidder.” Wester v. Belote, 103 Fla. 976, 138 So. 721 (1931). “A responsible, or qualified, bidder is one who has the capability in all respects to fully perform the contract requirements and the integrity and reliability that will assure good faith performance.” Am. Eng’g & Dev. Corp. v. Town of Highland Beach, 20 So. 3d 1000, 1000-01 (Fla. Dist. Ct. App. 2009) internal quotes omitted. Thus, simply submitting the lowest bid is not enough. A bidder must also be qualified to perform the work.

Therefore, a bidder who does not submit the lowest bid can still file a bid protest if the lowest bidder is not a responsible bidder. If you have been denied an award of a public contract due to the lowest bidder not being a responsible bidder, contact the experienced bid protest attorneys here at Smith & Associates for a free consultation. Be aware that bid protest cases have very strict, short deadlines, so you must act quickly to preserve your rights.

Recent Bid Protest Decisions

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.

Arguments raised and holdings:

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. Held: Such argument could only be raised within 72 hours of issuing RFP, and was therefore waived.

Petitioner argued to disregard scoring of one evaluator as either biased or arbitrary and irrational. Held: The scoring was not show to be arbitrary, capricious, dishonest, or illegal. However on one item, the ALJ did find the scoring to be “outside the range of reasonable” and determined by how many points it deviated from a reasonable score. “The ALJ may not revise fraudulent or random scores” … but the ALJ may revise scores that are merely outside the range of reasonable, if sufficient evidence exists….”

Petitioner argued that failure to include a detailed and itemized cost proposal rendered the proposal Non Responsive to RFP.

Held: Failure to include a detailed written narrative was a minor irregularity that could be waived, because failure to include was not shown to provide any type of competitive advantage.

American Lighting and Signalization v. Florida Department of Transportation, DOAH Case No. 10-7669BID; Judge Suzanne F. Hood:

Case involved a design build RFP for an “intelligent transportation system.” Agency issued intent to award to low bidder and second lowest bidder appealed.

Arguments raised and holdings:

Petitioner argued that low bid was not responsive to mandatory items in the RFP and should have been disqualified, but instead FDOT asked for additional clarifying information from the low bidder after the proposals were opened.

Held: It was error to award to low bidder when mandatory items were missing from bid. A clarification process cannot be used to amend a bid and include missing mandatory information.

The Weitz Company, LLC v. Broward County School Board, DOAH Case No. 10-8182BID; Judge Stuart Lerner:

This case involved a “Request for Qualifications” for a construction management at risk at a local high school. The Petitioner was selected as the party for negotiating a contract after a solicitation and evaluation process. After two years of negotiations, the School Board announced its intention to reject all responses and to “hard bid” the project.

Arguments raised and holdings:

The Petitioner argued that it was arbitrary and capricious and contrary to competition to withdraw the RFQ and re-bid after investment of nearly two year in the process.

Held: The withdrawal was not shown to be arbitrary or capricious, but was instead a well reasoned decision based on changed economic circumstances, including the opportunity to save substantial taxpayer dollars in a re-bid. Cites long line of decisions as to public interest in saving tax dollars.

Southern Atlantic Company LLC v. Orange County School Board, DOAH Case No. 10-9684BID: Judge Susan B. Harrell:

School Board awarded a contract to a construction contractor, Wharton-Smith, Inc. which required use of competitive procurement of subcontractors. An electrical subcontractor filed a Petition against the School Board when Wharton-Smith selected another vendor for the subcontract work.

Arguments raised and holdings:

Petitioner argued that School Board had elected to retain complete control over the construction work and expenditures by its contractor, and therefore a challenge to the decision of the Contractor to award work to another sub-contractor was proper. Held: The Contractor was not an agent of the School Board, and was a private company that took the action which Petitioner sought to challenge. The fact that School Board retained oversight of the process, and ability to review, did not render it an Agency decision subject to challenge in a 120.57 hearing. Case dismissed.

Humana Dental Insurance Company v. Lee County School Board, DOAH Case No. 10-9846BID; Judge Susan B. Harrell:

Lee County School Board issued an RFP for a dental insurance carrier. After receiving and reviewing proposals, and posting the intent to award to Humana, the School Board decided to reject all proposals. Humana appealed.

Arguments and holdings:
Petitioner argued that the decision to reject all bids was arbitrary.

Held:

  1. Procedural errors in the bid process were fatal including:
    1. Allowing the proposers to supply missing information after the proposals were opened.
    2. Requesting information from various vendors after the proposals were opened.
    3. Allowing the top three proposals to amend their proposals by submitting different type of product not specified in the RFP.
    4. Direct lobbying by representatives of one vendor during the evaluation process.

Keystone Peer Review Organization, Inc. v. AHCA, DOAH Case No. 10-9969BID; Judge John Newton II:

AHCA issued an Invitation to Negotiate (ITN) for Medicaid utilization and peer review services. The incumbent vendor lost in the evaluation process even though it was a lower price proposal by over $12 million.

Arguments raised and holdings:

Petitioner argued that the selection of the higher priced vendor was arbitrary and illogical and that the scoring of the evaluators could not be justified. Held: Selection of the higher priced bidder was justified. AHCA believed that the incumbent was “low balling” its bid, and this finding was not shown to be clearly erroneous, and evidence supported that some the price components did not appear reasonable.

Petitioner argued that the proposed award did not include a specific written finding of why the selected vendor provided the best value to the state. Held: Issue was premature as AHCA had not yet awarded the contract, and ALJ implied finding could be made upon the award, rather than intent to award. Further, ALJ noted that statutory amendments made after the ITN was issued did not apply to the procurement.

To the extent there was any inherent challenge to the ITN suggested, ALJ noted that nobody challenged any terms of conditions of ITN and therefore any such issue was waived.

Juvenile Services Program, Inc. v. Department of Juvenile Justice, DOAH Case No. 10-6280BID; Judge J.D Parrish:

Department of Juvenile Justice issued an RFP for a contract to provide Intensive Delinquency Diversion Services. The RFP sought responses for different geographic areas (Circuits) in the state in one document, rather than issuing separate RFPs for each circuit.

Arguments and holdings:

Petitioner had argued that it was an error to issue the RFP for different circuits with different specific local conditions in one RFP. Held: This argument amounts to a challenge to the RFP specifications which was not made within 72 hours of the RFP being issued and was therefore waived.

Petitioner argued that one evaluator was not qualified because she had no specific experience with the type of service being sought.

Held: Although the one evaluator did not have specific experience with Intensive Delinquent Diversion Services, and had never served as an RFP evaluator previously, she was familiar with these services and was properly educated and trained to serve as an evaluator.

Petitioner challenged some scoring of evaluators as arbitrary, and provided evidence of evaluators changing their scores without written explanation as evidence of arbitrary scoring.

Held: Scoring was not shown to be arbitrary, and changes showed a thoughtful process even if no written explanation provided.

Psychotherapeutic Services of Florida, Inc. v. Department of Juvenile Justice, DOAH Case No. 10-6279; Judge Elizabeth MacArthur:

Department of Juvenile Justice issued an RFP for a contract to provide Intensive Delinquency Diversion Services. Petitioner brought challenge primarily based upon alleged lack of experience of one evaluator.

Held: Even though the evaluator lacked specific direct experience in the program area, she had enough experience and exposure to the program to serve as an evaluator.

Urban Building Systems, Inc. v. Martin County School Board, DOAH Case No. 10-1147BID; Judge Eleanor Hunter:

The School Board issued a Request for Qualifications on a construction manager at risk contract for renovation at two elementary schools.

Arguments raised and holdings:

Petitioner argued that the RFQ included a specific requirement that a Professional Services Advisory Committee of the School Board would evaluate certain performance data on file, and that this requirement was not met because the Committee did not maintain such data. Therefore, the Petitioner argued that the School Board deviated materially from the RFQ specifications.

Held: Lack of data was not shown to have any affect on the outcome, and therefore not fatal.

Petitioner also advanced theories for scoring irregularities, such as inconsistency in how long a period of prior work experience was examined for each vendor. Held: Petitioner did not show this to have any impact. “The few instances of arbitrary scoring were actually proved to be too few in number to have any material impact on the average scores.”
Petitioner argued that campaign contributions to various school board members resulted in biased evaluations by these members.

Held: Legal campaign contributions were not proven to have any affect on the scoring.

Petitioners argued that a Sunshine Act violation occurred because the meeting of the Public Service Advisory Committee was not properly noticed.

Held: It appeared that a Sunshine Act violation did in fact occur, but ALJ found that the Petitioner failed to prove any adverse impact from this violation. In fact, the Petitioner actually benefited by being one of the firms selected to advance to further round of evaluations. ALJ noted that enforcement of the Sunshine Act in circuit court is different than raising this issue in a bid protest. In the former case, action can be set aside merely because the violation occurred. But in an administrative hearing, the party alleging the violation must still show adverse impact.

Eckerd Youth Alternatives, Inc. v. Department of Juvenile Justice, DOAH Case No. 10-0535BID; Judge Susan B. Harrell:

Department of Juvenile Justice issued an RFP for Community Based Intervention Services in Brevard County. The RFP included a requirement for proposer to include a “recidivism rate” for past performance in similar contracts. The RFP did not specify the method of calculating the recidivism rate. The Department’s evaluators applied a long standing scoring method and calculation that used an Average recidivism rate when the proposer had experience in more than one county or judicial circuit.

Arguments raised and holdings:

Petitioner argued that the scoring was not proper because the Department used a calculation methodology that was not disclosed in the RFP. Held: Even though it was not stated in the RFP, the calculation using an “Average” recidivism rate had been the Department’s prior policy and proposer was aware of this, and did not challenge the lack of clear methodology within 72 hours of the RFP being issued. Therefore, issue of unclear specification was waived, and it was not arbitrary or capricious to use the long standing prior policy.
Petitioner argued that it was arbitrary to use the Averaging methodology because the Department had in subsequent RFP clarified that it would no longer use the Averaging methodology.

Held: Subsequent RFP terms did not apply. Not shown that using prior method, in accordance with long standing policy, was arbitrary or capricious or contrary to RFP Specifications or policy of the Department. It would have been error to apply the new policy without announcing it in the RFP. If proposer wanted clarification, then should have challenged the RFP. Same method was applied to all proposers, and therefore it was not shown to be anti-competitive.

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.

Arguments raised and holdings:

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.

Held: Such argument could only be raised within 72 hours of issuing RFP, and was therefore waived.

Petitioner argued to disregard scoring of one evaluator as either biased or arbitrary and irrational.

Held: The scoring was not show to be arbitrary, capricious, dishonest, or illegal. However on one item, the ALJ did find the scoring to be “outside the range of reasonable” and determined by how many points it deviated from a reasonable score. “The ALJ may not revise fraudulent or random scores” … but the ALJ may revise scores that are merely outside the range of reasonable, if sufficient evidence exists….”

Petitioner argued that failure to include a detailed and itemized cost proposal rendered the proposal Non Responsive to RFP.

Held: Failure to include a detailed written narrative was a minor irregularity that could be waived, because failure to include was not shown to provide any type of competitive advantage.

American Lighting and Signalization v. Florida Department of Transportation, DOAH Case No. 10-7669BID; Judge Suzanne F. Hood:

Case involved a design build RFP for an “intelligent transportation system.” Agency issued intent to award to low bidder and second lowest bidder appealed.

Arguments raised and holdings:

Petitioner argued that low bid was not responsive to mandatory items in the RFP and should have been disqualified, but instead FDOT asked for additional clarifying information from the low bidder after the proposals were opened.

Held: It was error to award to low bidder when mandatory items were missing from bid. A clarification process cannot be used to amend a bid and include missing mandatory information.

The Weitz Company, LLC v. Broward County School Board, DOAH Case No. 10-8182BID; Judge Stuart Lerner:

This case involved a “Request for Qualifications” for a construction management at risk at a local high school. The Petitioner was selected as the party for negotiating a contract after a solicitation and evaluation process. After two years of negotiations, the School Board announced its intention to reject all responses and to “hard bid” the project.

Arguments raised and holdings:

The Petitioner argued that it was arbitrary and capricious and contrary to competition to withdraw the RFQ and re-bid after investment of nearly two year in the process.

Held: The withdrawal was not shown to be arbitrary or capricious, but was instead a well reasoned decision based on changed economic circumstances, including the opportunity to save substantial taxpayer dollars in a re-bid. Cites long line of decisions as to public interest in saving tax dollars.

Southern Atlantic Company LLC v. Orange County School Board, DOAH Case No. 10-9684BID: Judge Susan B. Harrell:

School Board awarded a contract to a construction contractor, Wharton-Smith, Inc. which required use of competitive procurement of subcontractors. An electrical subcontractor filed a Petition against the School Board when Wharton-Smith selected another vendor for the subcontract work.

Arguments raised and holdings:

Petitioner argued that School Board had elected to retain complete control over the construction work and expenditures by its contractor, and therefore a challenge to the decision of the Contractor to award work to another sub-contractor was proper.

Held: The Contractor was not an agent of the School Board, and was a private company that took the action which Petitioner sought to challenge. The fact that School Board retained oversight of the process, and ability to review, did not render it an Agency decision subject to challenge in a 120.57 hearing. Case dismissed.

Humana Dental Insurance Company v. Lee County School Board, DOAH Case No. 10-9846BID; Judge Susan B. Harrell:

Lee County School Board issued an RFP for a dental insurance carrier. After receiving and reviewing proposals, and posting the intent to award to Humana, the School Board decided to reject all proposals. Humana appealed.

Arguments and holdings:

Petitioner argued that the decision to reject all bids was arbitrary.

Held:

  1. Procedural errors in the bid process were fatal including:
    1. Allowing the proposers to supply missing information after the proposals were opened.
    2. Requesting information from various vendors after the proposals were opened.
    3. Allowing the top three proposals to amend their proposals by submitting different type of product not specified in the RFP.
    4. Direct lobbying by representatives of one vendor during the evaluation process.

Keystone Peer Review Organization, Inc. v. AHCA, DOAH Case No. 10-9969BID; Judge John Newton II:

AHCA issued an Invitation to Negotiate (ITN) for Medicaid utilization and peer review services. The incumbent vendor lost in the evaluation process even though it was a lower price proposal by over $12 million.

Arguments raised and holdings:

Petitioner argued that the selection of the higher priced vendor was arbitrary and illogical and that the scoring of the evaluators could not be justified.

Held: Selection of the higher priced bidder was justified. AHCA believed that the incumbent was “low balling” its bid, and this finding was not shown to be clearly erroneous, and evidence supported that some the price components did not appear reasonable.

Petitioner argued that the proposed award did not include a specific written finding of why the selected vendor provided the best value to the state.

Held: Issue was premature as AHCA had not yet awarded the contract, and ALJ implied finding could be made upon the award, rather than intent to award. Further, ALJ noted that statutory amendments made after the ITN was issued did not apply to the procurement. To the extent there was any inherent challenge to the ITN suggested, ALJ noted that nobody challenged any terms of conditions of ITN and therefore any such issue was waived.

Juvenile Services Program, Inc. v. Department of Juvenile Justice, DOAH Case No. 10-6280BID; Judge J.D Parrish:

Department of Juvenile Justice issued an RFP for a contract to provide Intensive Delinquency Diversion Services. The RFP sought responses for different geographic areas (Circuits) in the state in one document, rather than issuing separate RFPs for each circuit.

Arguments and holdings:

Petitioner had argued that it was an error to issue the RFP for different circuits with different specific local conditions in one RFP.

Held: This argument amounts to a challenge to the RFP specifications which was not made within 72 hours of the RFP being issued and was therefore waived.

Petitioner argued that one evaluator was not qualified because she had no specific experience with the type of service being sought.

Held: Although the one evaluator did not have specific experience with Intensive Delinquent Diversion Services, and had never served as an RFP evaluator previously, she was familiar with these services and was properly educated and trained to serve as an evaluator.

Petitioner challenged some scoring of evaluators as arbitrary, and provided evidence of evaluators changing their scores without written explanation as evidence of arbitrary scoring.

Held: Scoring was not shown to be arbitrary, and changes showed a thoughtful process even if no written explanation provided.

Psychotherapeutic Services of Florida, Inc. v. Department of Juvenile Justice, DOAH Case No. 10-6279; Judge Elizabeth MacArthur:

Department of Juvenile Justice issued an RFP for a contract to provide Intensive Delinquency Diversion Services. Petitioner brought challenge primarily based upon alleged lack of experience of one evaluator.

Held: Even though the evaluator lacked specific direct experience in the program area, she had enough experience and exposure to the program to serve as an evaluator.

Urban Building Systems, Inc. v. Martin County School Board, DOAH Case No. 10-1147BID; Judge Eleanor Hunter:

The School Board issued a Request for Qualifications on a construction manager at risk contract for renovation at two elementary schools.

Arguments raised and holdings:

Petitioner argued that the RFQ included a specific requirement that a Professional Services Advisory Committee of the School Board would evaluate certain performance data on file, and that this requirement was not met because the Committee did not maintain such data. Therefore, the Petitioner argued that the School Board deviated materially from the RFQ specifications. Held: Lack of data was not shown to have any affect on the outcome, and therefore not fatal.Petitioner also advanced theories for scoring irregularities, such as inconsistency in how long a period of prior work experience was examined for each vendor.

Held: Petitioner did not show this to have any impact. “The few instances of arbitrary scoring were actually proved to be too few in number to have any material impact on the average scores.”

Petitioner argued that campaign contributions to various school board members resulted in biased evaluations by these members.

Held: Legal campaign contributions were not proven to have any affect on the scoring. Petitioners argued that a Sunshine Act violation occurred because the meeting of the Public Service Advisory Committee was not properly noticed.

Held: It appeared that a Sunshine Act violation did in fact occur, but ALJ found that the Petitioner failed to prove any adverse impact from this violation. In fact, the Petitioner actually benefited by being one of the firms selected to advance to further round of evaluations. ALJ noted that enforcement of the Sunshine Act in circuit court is different than raising this issue in a bid protest. In the former case, action can be set aside merely because the violation occurred. But in an administrative hearing, the party alleging the violation must still show adverse impact.

Eckerd Youth Alternatives, Inc. v. Department of Juvenile Justice, DOAH Case No. 10- 0535BID; Judge Susan B. Harrell:

Department of Juvenile Justice issued an RFP for Community Based Intervention Services in Brevard County. The RFP included a requirement for proposer to include a “recidivism rate” for past performance in similar contracts. The RFP did not specify the method of calculating the recidivism rate. The Department’s evaluators applied a long standing scoring method and calculation that used an Average recidivism rate when the proposer had experience in more than one county or judicial circuit.

Arguments raised and holdings:

Petitioner argued that the scoring was not proper because the Department used a calculation methodology that was not disclosed in the RFP.

Held: Even though it was not stated in the RFP, the calculation using an “Average” recidivism rate had been the Department’s prior policy and proposer was aware of this, and did not challenge the lack of clear methodology within 72 hours of the RFP being issued. Therefore, issue of unclear specification was waived, and it was not arbitrary or capricious to use the long standing prior policy.

Petitioner argued that it was arbitrary to use the Averaging methodology because the Department had in subsequent RFP clarified that it would no longer use the Averaging methodology.

Held: Subsequent RFP terms did not apply. Not shown that using prior method, in accordance with long standing policy, was arbitrary or capricious or contrary to RFP Specifications or policy of the Department. It would have been error to apply the new policy without announcing it in the RFP. If proposer wanted clarification, then should have challenged the RFP. Same method was applied to all proposers, and therefore it was not shown to be anti-competitive.

Troy Foundation, Inc. v. Department of Juvenile Justice, DOAH Case No. 10-0536BID; Judge Claude B. Arrington:

Department of Juvenile Justice issued an RFP for a contract to provide Adult Day Treatment Services in a facility setting. Two vendors responded. At issue was the scoring on past performance.

Arguments raised and held:

Petitioner argued that in scoring of the winning proposal, evaluators improperly awarded points to the competing vendor for a program that was not truly a “non residential” program.

Held: The RFP included a clear footnote that the specific type of program considered, would be considered in evaluation of past performance. Disappointed proposer failed to raise any challenge to this specification within 72 hours of the RFP being issued, and the issue was therefore waived.

Petitioner argued a Sunshine Act violation in that members of the Department met with the Petitioner after the notice of protest without public notice and without meeting minutes, and further met privately amongst themselves to discuss the protest.

Held: No decisions or recommendations were made by the staff members, and therefore this group of staff was not a Board or Commissioner subject to Sunshine Act.

Sun Art Painting Corporation v. Palm Beach County School Board, DOAH Case No. 10-0367; Judge Stuart Lerner:

School Board issued an Invitation to Bid on two painting project jobs. The ITB included a “Revised Bid Summary Sheet” which included spaces to state the bid price and bidder name and address, but did not include a specific signature line on the form. However, in the Instructions in the ITB there was indication that any revised bid summary sheet was to be “executed.” Only 1 bidder signed the form for one job and only 2 bidders signed for the other job. Upon review, the School Board proposed to reject all bids.

Arguments raised and holdings:

Petitioner argued that it was lowest responsive bid, and that failure to include signatures was not a material variance warranting rejection of bids.

Held by ALJ: The ITB was not clear as to whether signature was required. “Execution” of the Revised Bid Summary Sheet could mean filling out the form as all the bidders did. Lack of a signature did not provide any material advantage to any bidder, and did not affect the prices that were bid. It would be contrary to competition to re-bid, and would unnecessarily expend and waste taxpayer dollars to re-bid when there was fair competition.

Ultimate Holding: School Board overturned the ALJ, and held that lack of signatures was a material variance from the ITB which required the sheets to be executed, and common understanding is that this means the sheets must be signed.

Sunshine Towing @ Broward, Inc. v. Department of Transportation, DOAH Case No. 10-0134BID; Judge John G. Van Laningham

FDOT issued an RFP for emergency towing services on I-95 in Martin, St. Lucie, and Indian River Counties. Sunshine Towing was lower priced — but Anchor Towing received slightly higher scoring, and proposed award to Anchor was made. The RFP specifically required that the proposer include “occupational licenses” for past three years.

Arguments made and holding:

Petitioner argued that the failure to include the required occupational licenses was a fatal error that rendered the proposal non-responsive, and the proposer was therefore not a responsible or qualified proposed.

Held: The ALJ noted the differences between a “minor irregularity” (those deviations from a requirement that provides no advantage in competition or in price) in a bid or proposal that can be waived, and a material variance that cannot be waived. The ALJ also noted that “gatekeeper” type of provisions that address the qualifications of the proposer should rarely if ever be waived — because these type of provisions are intended to winnow the field of possible bidders or proposer. However, under the specific facts, the ALJ found that the requirement was ambiguous because there was no longer an applicable “occupational license” when the proposals were submitted, because the local requirement was replaced with a simple “business tax receipt.” The ALJ concluded that the Agency’s determination that the requirement was “minor irregularity” was not a “clearly erroneous” decision. The decision indicates that the ALJ deferred to the Agency only on the basis of the strict standard of proof (“clearly erroneous”) required in bid protest cases, and that he otherwise agreed that the type of missing information should have been considered material.

TMS Joint Venture v. Commission for the Transportation Disadvantaged, DOAH Case Nos. 10-0030BID, 10-0051BID; Judge Susan B. Harrell:

The Commission issued an RFP for Non Emergency Medicaid Transportation (Medicaid NET) services in multiple counties. TMS challenged the proposed award to MV Contract Transportation, Inc. in Palm Beach and Duval Counties. Issue involved the scoring or proposal of the winning proposer (MV) by taking into consideration the Parent Company’s financial strength and resources. Evaluators testified during hearing that they had not reviewed the content of the RFP except for one Evaluator who had only skimmed the contents.

Arguments and holdings:

Petitioner TMS argued that MV should be disqualified because it did not clearly and properly spell out who was the prime vendor, and Evaluators improperly scored the proposal based on the financial strength, experience and resources of the parent company, rather than the entity that actually submitted the proposal.

Held: MV filed a faulty proposal by failing to clearly identify the prime contractor to be scored, and relied upon the experience and solvency of its parent organization; the RFP required that only the “prime vendor’s” experience and solvency should be considered and scored; the Evaluators failed to read the RFP and scored erroneously, not in accordance with the terms of the RFP; and that accordingly the MV proposal should be disqualified. Respondent MV argued that the TMS Joint Venture suffered the same defect as to not properly identifying a prime vendor but instead relying upon the experience and solvency of the two different legal entities that constituted the joint venture. However, the ALJ found that both the joint venturers would be fully liable under the contract, and they would in fact be the “prime vendor,” and therefore their combined experience could be considered. This was based on Florida law as to liability of parties to a joint venture. By contrast, MV parent company would not be liable for the acts of its subsidiary that submitted the proposal.

Epilogue: After the final hearing, the parties entered into a Settlement and agreed to split the contract awards with MV being awarded Palm Beach County and TMS Joint Venture being awarded the Duval contract.

Bid Protest Law: Know Your Rights – The Clock is Ticking

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Bid protests and bid protest law in Florida and challenges to competitive contract procurement and awards in Florida are controlled by a myriad of unique and complex statutes, rules, policies, and law. They proceed on an extremely fast track, and important rights can be waived if not immediately asserted. For example, challenges to final bid specifications, as well as any challenge to the final award, must be filed within only 72 hours of publication of the specifications or posting of the award. For these and other reasons, it is especially important to know your rights when your company becomes involved in any public procurement. Consideration should be given to retaining experienced Florida bid protest counsel early in the process to review bid specifications, assist in the Q&A process, analyze the proposal to assure responsiveness, and generally assure you a full and fair opportunity to prevail. At a minimum, if the need to file (or defend against) a bid protest arises, an experienced Florida bid protest counsel should be retained to fully protect your rights.

This memorandum provides an overview as to the process, rights, and key issues involved with state agency competitive procurements in Florida. However, similar timing issues, rules, and case law typically apply to federal agency purchasing, and local government and other publicly funded competitive procurements.

General Purpose of Competitive Procurement Requirements

Florida’s competitive procurement process is aimed at the protection of the public against collusive contracts, fraud, bias, and favoritism. Among other things, it 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. Wester v. Belote, 103 Fla. 976, 138 So. 721 (1931).

Florida Statutory Thresholds and Types of Procurement

Pursuant to Section 287.017 (purchasing threshold categories) and Section 287.057 (procurement methods) when a state agency wishes to contract for commodities or contractual services that cost in excess of $25,000, the agency must use one of several types of procurement methods. The three most common methods are: Invitation to Bid (ITB), Request for Proposal (RFP), and Invitation to Negotiate (ITN).

The ITB is used when the agency is capable of specifically defining the scope of work for which a contractual service is required or is capable of establishing the precise specifications defining the commodities sought. In an ITB process, price is king, and the lowest responsive and responsible bidder must be awarded the contract. Under Section 287.057, Florida Statutes, an ITB is the preferred method for state agencies to obtain goods and services. In order to use an RFP rather than an ITB, the agency must make a finding, in writing, that use of an ITB, where price is the deciding factor, is not practicable. If a company is concerned with a situation where an agency issues an RFP, rather than using an ITB where the lowest bidder is entitled to the contract award, then arguably a protest challenge must be filed within 72 hours of the issuance of the RFP or the ability to challenge the award is waived. This is a frequent problem in competitive procurements, as a disappointed party in responding to an RFP will argue that the state agency should have awarded the contract to the lowest price proposal.

In contrast to an ITB, the RFP is used when the agency determines, in writing, an ITB is not practicable including when the agency is seeking competitive offers for proposed commodities or contractual services to evaluate who best meets certain specifications and qualifications of the solicitation. Unlike the ITB process, under an RFP the agency is not required to award the contract to the lowest bidder, but instead it may be awarded to the most responsible offeror considering price as well as other criteria. Section 287.057(2)(a), Florida Statutes, mandates that price must be one of the criteria for evaluation, but it is not the controlling criteria.

An ITN is a written solicitation that calls for responses to select one or more persons or entities with which to commence negotiations and can only be used when the agency determines, in writing, that use of an ITB or RFP will not result in the best value to the state based on factors such as price, quality, design, and workmanship. Again, a party who believes that use of an ITN will not result in a competitive award, must assert a challenge within 72 hours of issuance of the ITN, or the ability to argue that the state should have used an RFP or ITB will likely be waived.

Other less common procurement methods are also available to agencies under specified conditions as defined in Chapter 287, including a request for quote (RFQ), emergency purchases, and single source purchases. In addition, there are special provisions that apply to the procurement of certain commodities and services such as insurance, architectural and engineering services, and information technology.

Timing of and Rights to Protest Specifications and Intended Awards

Florida’s Administrative Procedure Act at Section 120.57(3), Florida Statutes, and Rules found in Chapter 28-110, Florida Administrative Code, generally govern state agency competitive bidding disputes including notice requirements, the time frames for protests, and hearing procedures.

The 72-Hour and 10-Day Protest Deadlines. Vendors (bidders, proposers) should initially be aware of the distinction between challenges to the published bid specifications versus challenges to the ultimate award of the bid itself. As to each, a separate 72-hour deadline applies. If a bidder wishes to challenge 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) the notice of protest must be filed within 72 hours after posting of the solicitation. This is extremely important for vendors responding to a solicitation to consider. One of the most common problems in public procurement is that a vendor fails to challenge the specifications or criteria in an ITB or RFP although the vendor believes that a particular criteria or specification is unfair, unnecessary, or one that the vendor simply cannot meet. (This is often rationalized by the vendor as an effort to remain on good terms with the contracting agency – i.e., seeking to avoid an action that would irritate the contracting agency.) The use of criteria or specifications that are biased towards an incumbent contractor, or towards a vendor preferred by the state agency in question, is illegal, but nevertheless is a historic and fairly frequent problem in the public procurement arena. If a vendor believes that any part of the RFP is suspect, they must file the required notice within 72 hours or the issue is forever waived.

If a bidder or proposer wishes to challenge any agency decision (an award) or intended decision (or intended award) a notice of protest must be filed with 72 hours of posting of the notice of decision or intended decision. § 120.57(3)(b), Fla. Stat. Intervening holidays and weekends are excluded in computing each of these 72-hour period. All parties who submitted a response to an ITB or RFP are entitled to a fair notice explaining their protest rights, and failure of the state agency to provide proper notice may extend the time for filing a notice of protest.

Subsequent to the filing of any protest, a formal written protest must be filed within 10 days after the notice of protest is filed. Intervening holidays and weekends are counted in computing this 10-day period. This formal written protest must state with particularity the facts and law upon which the protest is based, and is often an extensive legal document containing supporting arguments, authorities, and evidentiary exhibits. Per the statute, failure to timely file the 72-hour notice of protest or the 10-day formal written protest, will constitute a waiver of the right to protest. See also Capeletti Bros. v. DOT, 499 So. 2d 855 (Fla. 1st DCA 1986) (72-hour period); Xerox v. DPR, 489 So. 2d 1230 (Fla. 1st DCA 1986) (10-day period). Although the deadlines are not strictly “jurisdictional,” late filing will be excused only in extraordinary situations such as where the agency fails to disclose conditions in the solicitation specifications, or where agency action or inaction substantially contributed to or caused the late filing. Jacksonville Port Auth. v. Parkhill-Goodloe Co, 362 So. 2d 1009 (Fla. 1st DCA 1978).

Bid Protest Bond. Protestors must generally file a bond payable to the agency as required by Section 287.042(2)(c), Florida Statutes, and Rule 28-110.005 Florida Administrative Code, in an amount equal to 1 percent of the estimated contract amount. Failure to timely file a required bond within the time provided will also result in a waiver of the right to protest. The bond is to cover costs, since the losing party in a bid protest is responsible for paying the prevailing party’s costs and charges (but not attorney’s fees). Attorney’s fees are sometimes separately sought and awarded in cases where a protest is found to be “frivolous” or filed for “improper purposes” as defined by statutes and controlling case law.

Protest Stays the Bid Process. Filing of a timely formal protest stops the bid process and no final award of a contract may be made before entry of a final order after resolution of the protest, unless the agency head sets forth in writing particular circumstances which require the continuance of the process in order to avoid an immediate and serious danger to the public health, safety, or welfare. Fla. Stat. § 120.57(3)(c).

Settlement Period. Prior to forwarding a protest to DOAH for hearing, Florida’s APA requires that the agency must allow seven days, excluding weekends and holidays, to provide an opportunity for the parties to resolve the protest without hearing by mutual agreement of the parties. This is a prime opportunity to resolve any dispute early on and avoid the cost of continued litigation. Whether a vendor is the winning bidder, or a challenger to the proposed award of a contract, they should monitor the settlement process closely, and should demand that the state agency keep them advised of any and all meetings, discussions, correspondence, or contacts by other parties. It is probably best legal practice for an interested vendor to file a Notice of Appearance and Motion to Intervene with the state agency during the settlement period, so that there is no ambiguity as to the party asserting its rights to be part of all Settlement discussions.

Any decision of the agency to change its proposed award or to reject all bids or proposals as a result of the discussions in the settlement period must include a new Notice of rights, and opportunity for parties to file a challenge to the new agency action. Although there does not appear to be any reported cases, it is arguable that any Settlement entered by the state agency that does not include all parties who responded to the ITB or RFP is illegal – as Section 120.57(3)(c), Florida Statute, mandates that the contract award process be stopped once a bid protest is filed, unless there is a documented emergency situation – or unless there is a settlement – which implies a resolution among all interested parties.

Standing to Protest

Section 120.57(3) provides that any person who is “adversely affected” by the agency action may file a protest. While a second ranked low bidder has standing to challenge an award to the low bidder based on non-responsiveness and other factors, a third or lower ranked bidder generally does not have standing, since even if successful in the protest of the award to the low bidder, the award would then go to the second ranked low bidder. Preston Carroll v. Florida Keys Aqueduct Auth., 400 So. 2d 524 (Fla. 3d DCA 1981). Nevertheless, the third or even fourth low bidders can sometimes have standing such as where all higher ranked bidders are also challenged, or where the procurement process was fundamentally flawed requiring a full rebidding. See, e.g., NCS Pearson, Inc. v. Dept. of Education, Case No. 04-3976, 2005 WL 310776 at ¶¶ 85-87 (DOAH Feb. 8, 2005; F.O. Feb. 22, 2005) (third-lowest bidder had standing based on challenge to fundamental fairness of procurement process). Absent special and extraordinary circumstances, non-bidders do not have standing. Fairbanks v. DOT, 635 So. 2d 59 (Fla. 1st DCA 1994) (standing found because the bid specifications effectively limited the source of materials to one specific manufacturer).

Common Grounds for Protests

The grounds for a valid bid protest tend to be fact-specific and vary broadly with the circumstances and requirements of each particular procurement. But in general, the following is a listing of some of the more common categories of grounds for protest that commonly arise in bid protest cases.

Sunshine Act Violations. Pursuant to Florida’s “sunshine law,” all meetings of any state agency at which official acts may be taken must be conducted as open, public meetings. Absent that, any action taken during such meetings is improper. The result is that the agency’s action is void and can be given no effect. See § 286.011, Fla. Stat.; Silver Express Co. v. District Board of Lower Tribunal Trustees of Miami-Dade Community College, 691 So. 2d 1099, 1100-01 (Fla. 3rd DCA 1997) (determining that a committee which helped crystallize the ultimate decision to be made by a college as to the award of a contract must be conducted openly and publicly). Among other things, to comply with the Sunshine law, all general meetings of a procurement evaluation committee should be publically noticed, and open to the public. Discussions or communications between members of the evaluation committee with respect to the procurement should not occur in private (though there are certain exceptions as to ITNs). Thus, any situation that involves private discussions among two or more evaluation committee members about the scoring or evaluations that are held outside a properly noticed public meeting are prohibited and would be a basis to challenge a contract award. (This can include communications among the members of the evaluation committee or others involved in the ultimate contract award such as email correspondence or inter-office memoranda.)

Improper Ex Parte Communications. Per Chapter 287, Florida Statutes, communications between those responding to the solicitation and the procuring agency and staff are prohibited during a “black out” period (basically from the release of the solicitation to the end of the 72-hour protest period) from communicating with anyone at the agency other then in writing to the procurement officer. Violation of this requirement may be grounds for rejecting a response.

Non-Responsive Bids: Material Variances vs. Minor Irregularities. Whether a mistake, deviation, or variance in a bid will be considered material (so as to deem the bid non-responsive) or a minor irregularity (that can be waived by the agency) is a highly technical question, and depends on the facts and circumstances of each case. To be responsive, a bid or proposal must conform in all “material” respects to the solicitation. § 287.012(25), Fla. Stat. There is a large body of case law as to what constitutes a minor irregularity versus a material variance from specifications, but generally, a material variation is one which: (1) affects the price of the bid; (2) gives the bidder an advantage or benefit not enjoyed by other bidders; or (3) adversely impacts the interests of the procuring agency. Intercontinental Properties, Inc. v. HRS, 606 So. 2d 380 (Fla. 3d DCA 1992). Material deviations or changes include those that involve fraud or misconduct, or that provide a bidder with an unacceptable or material competitive advantage. See Liberty City v. Asphalt & Concrete, 421 So. 2d 505 (Fla. 1982). In general, the test for measuring whether a deviation in a bid is sufficiently material to destroy its competitive character is whether it affects the amount of the bid by giving the bidder an advantage not enjoyed by other bidders. Harry Pepper and Associates, Inc. v. City of Cape Coral, 352 So. 2d 1190 (Fla. 2d DCA 1977). In contrast, minor irregularities have included such matters as the submission of a cashier’s check instead of a bid bond, the failure to submit written evidence that agent signing of the owner had authority, and the failure to include a form listing DBE subcontractors, at least where there is an allegation that the form was enclosed but later misplaced. See, e.g., Intercontinental Properties; Asphalt Pavers v. DOT, 602 So. 2d 558 (Fla. 1st DCA 1992). Often ITBs or RFPs will specifically list “Mandatory Criteria” or “Fatal Criteria” in the solicitation document. This listing is not exhaustive of required items. The bid or proposal may still be fatally defective if the bidder or proposer is otherwise not responsive to information and criteria specified anywhere in the RFP or ITB, and the omission meets the test of a material variance from the specification requirements as discussed above.

Improper “Conditional” Proposals. A proposal that is made conditional with respect to material matters such as price must be deemed non-responsive. See Sweeping Corporation of America, Inc. v. FDOT, Case No. 91-8203, 1992 WL 881039 (DOAH March 24, 1992; FDOT April 30, 1992) at ¶¶ 10-11 and 38-39 (holding that letters submitted that were conditional and equivocal with respect to a bond requirement required that the proposal be deemed non-responsive). This problem arises where a vendor includes a response that makes its proposal contingent upon some specification that is not expressly stated in the RFP or ITB.

Non-Responsiveness as to DBE or MBE of DBE Requirements. Many RFPs contain specified requirements as to Minority Business Enterprises (MBEs) or Disadvantaged Business Enterprises (DBEs). Failure to comply with such mandatory requirements is a material error that renders a bid non-responsive. See, e.g., City of Wildwood v. Gibbs & Register, Inc., 694 So. 2d 763 (Fla. 5th DCA 1997) (after bids were announced, mathematical errors were discovered showing that low bidder had not met the required MBE/WBE percentage); Vito’s Trucking and Excavating Co. v. Dept. of Transportation, No. 84-3436BID, 1984 WL 275479 at ¶ 6, 9, 14 (DOAH Dec. 14, 1984) (bid was non-responsive because bidder failed to meet DBE percentage requirements).

“Non-Responsible Bidder” Issues. A vendor’s bid or proposal must not only be responsive, but the vendor itself must also be a “responsible” bidder. Responsible bidder requirements are typically spelled out in the ITB or RFP or by controlling statute, rule or policy. Section 287.012(24) defines a “responsible vendor” as “a vendor who has the capability in all respects to fully perform the contract requirements and the integrity and reliability that will assure good faith performance.” Generally, a bidder can be disqualified as non-responsible for a variety of reasons including such matters as: lack of required qualifications, lack of necessary resources and experience, financial inability or insolvency, submitting false statements in bids, delinquencies on prior contracts, failure to meet applicable pre-qualification requirements, failure to possess required certifications, and the like. Typically these type requirements cannot be satisfied post-bid opening. City of Opa Locka v. Trustees of Plumbing Industry Promotion Fund, 193 So. 2d 29, 32 (Fla. 3d DCA 1966).

Pricing and Performance Issues Showing “Non-Responsible Bidders. In unusual cases, a low bid may be “too good to be true” and various factors may indicate that the bidder cannot perform. A public entity is not necessarily required to accept the lowest dollar bid, but instead may bypass the “lowest bid” if that bidder or the bid itself is not “responsible.” See, e.g., City of Pensacola v. Kirby, 47 So. 2d 533, 535 (Fla. 1950) (statute requiring award to “lowest responsible” bidder does not require agency to award contract to the “lowest dollars and cents” bidder); Couch Construction Co. v. State DOT, 361 So. 2d 184 (Fla. 1st DCA 1978); Mayes Print Co. v. Flowers, 154 So. 2d 859 (Fla. 1st DCA 1963). The “responsible bidder” requirement vests discretion in the public authority to determine whether the lowest bidder is in fact also the lowest responsible bidder by considering various performance related factors including such matters as facilities available, financial resources and ability, experience, quality of previous work, reputation for performance, judgment and skill, outstanding obligations, integrity and credit, pecuniary ability, and various other matters relating to the ability of the bidder to perform the contract. See, e.g., Duboise Const. Co. v. City of South Miami, 108 Fla. 362, 146 So. 833 (1933); Engineering Contractors Assoc. of South Florida, Inc., 789 So. 2d 445, 451 (Fla. 4th DCA 2001). Analogous federal authorities likewise illustrate that a public entity may consider performance, financial, and other factors, including whether a bid is abnormally low, unrealistic, or a “low-ball” offer, or otherwise made without adequate resources so as to create risk that the contractor will abandon or short-change performance. The federal decisions have termed this a “price realism analysis” and is used to make a “responsibility” determination, a performance risk assessment, or an analysis of whether the offeror understands the work. See, e.g., Information Sciences Corp. v. United States, 73 Fed. Cl. 70, 100-103 (U.S. Ct. Fed. Claims Sept. 19, 2006).

Non-Existing or Improperly Named Bidder as “Non-Responsible” Bidder. In general, a contract cannot be awarded to a nonexistent entity, since no entity would be bound to perform the work. Oklahoma County Newspapers, Inc., Comp. Gen. Dec. B-270849, 96-1 CPD 213, 1996 WL 225730 (May 6, 1996). Similarly, if a bidder’s corporate charter has been dissolved, it lacks legal capacity to contract, and so cannot be awarded the bid. Casper Const. Co., Inc., Comp. Gen. Dec. B-253887, 93-2 CPD 247, 1993 WL 437055 (Oct. 26, 1993). If a proposal is ambiguous on the identity of the offering entity, the offer will be unacceptable, since there is uncertainty as to exactly who is bound to perform the contract. B & L Services, Inc. v. Dept. HRS, No. 85-3294BID, 1986 WL 401534 at ¶ 9, 34, & 37 (DOAH June 4, 1986). Such ambiguous bids are nonresponsive because they do not exhibit an intent of the bidder to be bound by the terms of the contract and this directly impacts the price, quantity, quality and delivery of the solicited products. Honeywell, Inc. v. United States, 16 Cl. Ct. 173, 35 Cont. Cas. Fed. (CCH) ¶ 75,611 (U.S. Cl. Ct. 1989), rev. on other grounds, 870 F. 2d 644 (Fed. Cir. 1989); Griffin Const. Co., B-185790, 76-2 CPD ¶ 26, 1976 WL 13110 (July 9, 1976) (award of contract to an entity other than that named in the bid constitutes an improper substitution of bidders). Moreover, it is improper to substitute bidding entities after bids have been submitted. For example, in Mil-Tech Systems, Inc. v. United States, 6 Cl. Ct. 26, 28, 31-35 Cont. Cas. Fed. (CCH) 72,719 (U.S. Cl. Ct. 1984), the court held a bidder could not transfer all of its stock to another company where the only assets of the bidder’s company was the awarded bid because such transfer of stock under those circumstances was tantamount to an illegal substitution of the bidder and constitute improper “bid brokering.” Similarly, a bid is nonresponsive if the legal entity on the bid is different than the legal entity identified on the bid bond.

Bias, Improper Conduct, or Ethical Violations of Evaluation Committee. Bias, favoritism, or unethical conduct on the part of the evaluation committee is a frequent successful ground for protests. Even the potential appearance of a conflict of interest can qualify. See, e.g., Compass Environmental, Inc. v. Department of Environmental Protection, Case No. 05-0007, 2005 WL 678870 at ¶¶ 46-55, 77 (DOAH March 21, 2005) (holding evaluators properly removed due to potential appearance of conflict, and holding that it was unnecessary to show “hard fact” evidence of actual bias or favoritism) (DEP Apr. 19, 2005 reversing on other grounds); Transportation Management Servs. of Broward, Inc. v. Commission for the Transportation Disadvantaged, Case No. 05-0920, 2005 WL 1210021 (DOAH, May 20, 2005) (appearance of impropriety); Medco Behavioral Care Corporation v. State of Iowa Department of Human Services, 553 N.W. 2d 556 (Iowa 1996) (holding appearance of conflict of interest sufficient to nullify proposed contract award). There are also numerous Attorney General opinions and Ethics Commission opinions interpreting state ethics laws in procurement settings. See, e.g., Op. Att’y Gen. Fla. 74-159 (1974) (members of county aviation authority were public officers prohibited from being interested in public contracts in which they are party to the letting); Commission on Ethics Opinion (CEO) 01-4 (Mar. 20, 2001) (prohibited conflict of interest for City Commissioner to remain employee of tax-exempt community development corporation that contracts with the City).

Arbitrary Scoring and Evaluation Errors and Methodologies. So long as acting in good faith, public agencies have broad discretion in procurement matters. This is especially true when it comes to scoring and evaluation issues. Thus it is especially difficult to convince a court to re-score or re-evaluate. Nevertheless, some common examples of such challenges to consider include clear mathematical errors made by scorers, evidence that the scoring system itself is illogical or arbitrary, a clear statistical bias in a particular evaluator’s scoring when compared with other evaluators, failure of evaluator to sign conflict of interest forms, improper ex parte communications between evaluators as to scores, unqualified or inexperienced evaluators, and an evaluator’s failure to follow agency or bid document procedures. For example, if there are no weights assigned for the various criteria of an RFP, or the weights are applied inconsistently or irrationally, this can be a basis for challenge including on the basis that it prevents “an opportunity for an exact comparison of bids” as required by Wester v. Belote, 138 So. 721, 723-24 (Fla. 1938).

Consideration or Weighing of Criteria Beyond the Four Corners of the RFP. Evaluators are generally not to look outside the RFP criteria, or outside the proposals submitted, or base scoring on external information outside of the RFP and evaluation process when conducting their reviews of the submitted proposals. Aurora Pump v. Gould Pumps, Inc., 424 So. 2d 70 (Fla. 1st DCA 1982) (agency must evaluate the bids or proposals received solely on the criteria stated in the RFP); R. N. Expertise, Inc. v. Miami-Dade County School Board, et al., Case No. 01-2663, 2002 WL 185217 (DOAH: Feb. 4, 2002; F.O. Mar. 14, 2002).

Improper POST-Bid Submissions. No submissions made after the bid or proposal opening that amend or supplement are to be considered by the agency. Thus a bidder cannot change a bid after the bid has been opened, except to cure “minor” irregularities. Harry Pepper & Assoc. v. Cape Coral, 352 So. 2d 778 (Fla. 1st DCA 1981).

Post-Award Changes; Improper Bid Shopping. Solicitation documents often require that subcontractors be listed and identified at the time of proposal submission. Failure to identify all subcontractors as required by an RFP is grounds for challenging a proposal as invalid. See, e.g., E.M. Watkins & Company, Inc. v. Board of Regents, 414 So. 2d 583, 587 (Fla. 1st DCA 1982) (“dangers” of bid shopping); D. E. Wallace Construction Corp. v. Florida Board of Regents, No. 89-6844BID, 1990 WL 749710 at ¶¶ 24-29 (DOAH Feb. 26, 1990; F.O. March 30, 1990) (bidder failed to use correct list of subcontractors form and did not submit its proposed MBE participation plan until seven days after bid opening, thus bid was non-responsive). An RFP or ITB that allows a party to submit a bid or proposal for work that will be substantially conducted by subcontractors, without a requirement to identify the subcontractors, and provide proof of ability to perform at the bid price is certainly a situation making the RFP or ITB subject to a timely challenge. Again, the challenge must be brought within 72 hours of the issuance of such an RFP or ITB or the issue will likely be waived.

The Formal Hearing Process

Generally. Once the protest is filed, and assuming there are disputed issues of fact, the agency refers the matter to Florida’s Division of Administrative Hearings (DOAH) for an expedited formal hearing before an administrative law judge (ALJ) pursuant to the detailed provisions of Section 120.569 (decisions affecting substantial interests), Section 120.57 (additional procedures), and Section 120.57(3) (additional requirements as to hearings involving bid protests).

Right to a Hearing: Issues can sometimes arise as to whether a fair hearing under Section 120.57(1), Florida Statutes, is required. Examples would include solicitations by a local government that involve expenditure of state funds; solicitations by a state contractor for subcontractors that will be funded with state funds; or solicitations by other organizations or bodies that have accepted state or federal funding or grants, and have made themselves subject to the public procurement processes. Even in situations where a Section 120.57 hearing is not required, fundamental due process would demand that a hearing be made available that includes adequate notice and a right to be heard. The sufficiency of the process being offered by a local government agency is often the subject of legal challenge. An aggrieved party can always seek relief in circuit court if being denied the opportunity for a full and fair hearing.

Expedited Nature. Section 120.57 hearings are de novo and are expedited in the sense that: a final hearing must be conducted within 30 days of DOAH’s receipt of the formal protest; a recommended order is to be issued by the ALJ within 30 days after receipt of the hearing transcript; and a final order is to be issued by the agency within 30 days of the recommended order. However, these time periods can be waived by agreement of the parties and in complex cases this is often the case, although the prevailing vendor may insist on the statutory time periods.

Pre-Hearing Discovery and Other Procedures. Pre-hearing procedures and rights are similar to civil non-jury trials. The rules are found in Chapter 128-106 Fla. Admin. Code. Among other things, these rules incorporate the discovery rules and procedures from the Florida Rules of Civil Procedure. Accordingly, the broad arsenal of discovery including written discovery (interrogatories, requests for production, requests to admit) and depositions are commonly utilized.

Burden and Standard of Proof. In bid protests where an award has been made, the administrative law judge (ALJ) is required to conduct a de novo proceeding to determine whether the agency’s proposed action is clearly erroneous, contrary to competition, arbitrary or capricious, or contrary to the agency’s rules or policies, or the bid or proposal specifications. The standard of proof in these proceedings is whether the proposed agency action was clearly erroneous, contrary to competition, arbitrary, or capricious. However, a lower standard of review applies where the agency has rejected all bids – such a decision will be overturned only if the agency’s action is illegal, arbitrary, dishonest, or fraudulent. § 120.57(3)(f), Fla. Stat.

Hearing and Post-Hearing Process. The hearings are full evidentiary hearings that will typically take 1-3 days. In highly complex procurements the hearings can sometimes last for a week or more. Following the hearing, proposed recommended orders are submitted generally within 30 days. These PROs are lengthy detailed documents that outline proposed findings of fact based upon the evidence presented in the hearing, as well as proposed conclusions of law, and a recommendation. The ALJ then considers the PRO submitted by each party and issues a recommended order to the agency. The recommended order will include the ALJ’s findings of fact and conclusions of law and an ultimate recommendation on whether to award the contract to a particular vendor, to return all bids and proposals to the agency to be re-evaluated, or to reject all bids and proposals.

The parties then have 15 days to file exceptions to the recommended order with the agency. The agency is bound by the findings of fact, unless there is no competent substantial evidence in the record to support the ALJ’s findings. The agency can only change a conclusion of law if it is on a matter that is within the agency’s specialized knowledge or expertise, and the agency’s conclusion is as reasonable or more reasonable that the conclusions of the ALJ. The agency issues its final order either accepting in whole or part the ALJ’s recommended order. The agency’s FO is subject to judicial review via appeal to the District Court of Appeal.

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