If you are a Florida business that contracts with public entities, you likely have not won every contract. And, you may wonder if you can appeal the decision. The answer is yes, with a bid protest.
What is a bid protest?
A bid protest is a challenge to the solicitation/award of a public contract. It can be based on the agency’s violation of its own procurement rules or policies, or statute or regulation violations. Perhaps, the agency acted arbitrarily, capriciously or in bad faith in evaluating or selecting the bids or proposals, or the agency made a mistake of fact or law that affected the outcome. Finally, the bid protest can be based on an allegation that the agency was influenced by fraud, corruption or other improper conduct.
How to initiate a bid protest in Florida?
Florida’s Administrative Procedures Act provides a uniform system of procedures for bid protests involving state agencies and other public entities that adopt its provisions. The APA also establishes the Division of Administrative Hearings to conduct hearings and issue recommended orders to agency heads.
First, initiate the bid protest with a notice of intent to protest within 72 hours after receiving the agency’s decision. The notice must identify the solicitation or contract number, state that a protest is being filed and describe how and when notice of the agency’s decision was received.
Next, file a formal written protest within 10 days after filing the notice. The formal written protest must include: the facts and law that support the protest, how and when notice of the agency’s decision was received and a statement of how and when notice of intent to protest was filed. It must also contain a statement of all issues that are disputed, and the relief sought.
Third, post a bond (1% of the estimated contract value or $10,000, whichever is less) with the agency within 10 days after filing. The bond covers agency costs, if you lose.
Fourth, request a DOAH hearing within 10 days after filing. The request must include a copy of the notice of intent to protest, the formal written protest, any documents relevant to the protest and a statement of whether mediation is desired.
Finally, participate in the DOAH hearing and await the final order from the agency head. The agency head has 30 days after receiving the ALJ’s order to issue a final order that either adopts, modifies or rejects it. You can appeal the final order to Florida’s District Court of Appeal within 30 days after receiving it.
Ensuring fair competition
Bid protests are a tool for Florida businesses to ensure fair competition. However, bid protests are also subject to strict deadlines and procedures under Florida’s APA.