Clients and potential clients frequently come to us and complain about the low scores they’ve gotten from a Florida state agency (or the high scores their competitors got) that caused them to lose out on valuable contracts. Their first instinct is to argue that they should have gotten a higher score or their competitors should have gotten lower scores. As we often tell them, scoring issues, which are highly subjective, are the most difficult to prevail on in a bid protest. The key to a successful protest is demonstrating a concrete and specific flaw in the procurement protest that occurred as a matter of historical fact. That being said, you don’t have to take an unfair or inaccurate score lying down.
In Florida, when state agencies use best-value procurements (those using requests for proposals or invitations to negotiate) the agency is required to create a contemporaneous record of how and why it selected the awardee. § 287.057(1)(b)(4), Fla. Stat. (When a request for proposals is used “[t]he contract file shall contain documentation supporting the basis on which the award is made.”); § 287.057(1)(c)(5), Fla. Stat. (“The contract file for a vendor selected through an invitation to negotiate must contain a short plain statement that explains the basis for the selection of the vendor and that sets forth the vendor’s deliverables and price, pursuant to the contract, along with an explanation of how these deliverables and price provide the best value to the state.”).
Notwithstanding these statutory requirements, the reality is that Florida agencies will frequently rely solely on the evaluators’ scoresheets to support a boilerplate award memo, even though there is no way to tell how or why the evaluators arrived at their scores. Even when the evaluators are deposed during protests pending before the Florida Division of Administrative Hearings (“DOAH”), they are generally not able to meaningfully articulate how or why they gave the protester a “5” for one sub-factor and the awardee a “6” for that same sub-factor. Even so, it appears that no one has ever filed a protest at DOAH arguing that the agency has failed to adequately document its procurement as required by § 287.057(1), Fla. Stat. by relying solely on evaluator scoresheets.
This is a missed opportunity. The United States Government Accountability Office (“GAO”) – the federal counterpart to Florida’s DOAH – routinely sustains protest on that basis. As the GAO recently explained when it sustained the protest in Global Aerospace Corp., B-414514 (Comp. Gen. July 3, 2017): “it is a fundamental principle of government accountability that an agency be able to produce a sufficient record to allow for a meaningful review where its procurement actions are challenged. Where an agency fails to document or retain evaluation materials, it bears the risk that there may not be an adequate supporting rationale in the record for us to conclude that the agency had a reasonable basis for the source selection decision.” (internal citations omitted). Therefore, “[p]oint scores cannot be used as a substitute for adequate documentation showing the bases for the evaluation conclusions reached and source selection decision made [. . . and a] comparison of proposals based on point scores alone [is] inadequate[.]” Celta Servs., Inc., B-411835.2 (Comp. Gen. Nov. 2, 2015) (sustaining protest) (internal citations omitted).
The next time you want to challenge your scores in a Florida procurement, you should consider arguing lack of adequate documentation. Such an additional argument, which is more objective, will increase your chances of prevailing in a bid protest that involves subjective scoring issues.
- Partner
Joseph M. Goldstein is the Managing Partner of the Fort Lauderdale office of Shutts & Bowen LLP, where he is a member of the Business Litigation Practice Group. Joseph also practices out of the Tallahassee office.
A ...
Search Blog
Follow Us
Recent Posts
- What You Need to Know About the U.S. Department of Transportation’s Build America TIFIA Loan
- Breaking News: Federal Judge Blocks Nationwide Implementation of the FTC’s New Rule Banning Noncompete Agreements
- September 4th is Almost Here: How Employers Can Prepare for the Upcoming Effective Date of the FTC’s Non-Compete Rule
- Florida’s New Statutory Home Warranty: What Home Builders Need to Know
- Orange County Proposes Temporary Suspension Ordinance on New Development Applications
- Raising the Roof: The U.S. Department of Labor Announces Rule Raising Salary Thresholds for Overtime Exemptions
- New Guidelines Anticipated Following HHS’s Health Cybersecurity Concept Paper
- SECURE 2.0 and Protecting Your Designated Beneficiaries
- Florida Appellate Court Provides Further Guidance Regarding New Summary Judgment Rule
- Pith? Perfect for Lienors, Not So Much for Landlords: Protecting Rights When Improvements Are Made to Commercial Tenancies
Popular Categories
- Employment and Labor
- Construction
- Business of Real Estate
- Litigation (Labor & Employment)
- Construction Litigation
- Competition
- Landlord-Tenant
- Real Estate Law
- Public Private Partnership
- Cybersecurity
- Intellectual Property
- Construction
- Appeals
- Development/Land Use
- Litigation
- Public Finance
- Contracts
- Trusts and Estates
- Data Security
- Business
- Supreme Court
- Privacy
- Technology
- Litigation (Appellate)
- IP Litigation
- Patents
- Business
- Regulatory Compliance
- Florida Government Contracts
- Health Care
- Foreclosures
- Trademark
- Contracting
- Financial Institutions
- Compliance
- Estate planning
- International Dispute Resolution
- Property Tax
- Conveyances
- Florida Public Contracts
- Government Contracting
- Government Contracts
- Government
- Lease
- Appellate Blog
- Patent Office
- Insurance
- Wealth planning
- Federal Government Contracting
- Cyber fraud
- Florida Bid Protests
- Public Contracts
- Infringement
- Proposal Writing
- Public Bidding
- GAO
- International Arbitration and Litigation
- Arbitration
- Bid Protest
- International
- Americans with Disabilities Act
- Restrictive Covenants
- Grant Writing
- Copyright
- Title
- Promissory Notes
- Small Business
- Florida Procurement
- Public procurement
- Consumer Privacy
- PTAB
- General Liability
- Technology
- International Arbitration
- Liens
- Liens and encumbrances
- Creditor's Rights
- Bidding
- Attorneys' Fees
- Inter Partes Review
- Power Generation
- Consumer Protection
- Regulation
- Contracting
- Government Vendor
- State Government Contracts
- Venue
- Ad Valorem Assessments
- Florida Administrative Law
- Attorneys' Fees
- Florida Rules of Appellate Procedure
- Bankruptcy
- Florida Public Procurement
- Russia-Related Arbitration
- Mortgages
- Eviction
- FINRA
- Record on Appeal
- Rehearing
- Loan guaranties
- Patents - Assignor Estoppel
- Dispute Resolution
- Statute of limitations
- Statute of repose
- Maritime
- Liens
- Damages
- Briefing
- Patents - Obviousness
- Request for Proposal
- Department of Labor
- Trade Secrets
- Commercial Brokerage
- Bid Writing
- Florida Bidding Strategies
- Renewal
- Attorneys' Fees
- Florida County Lands
- Florida Economic Incentive Packages
- Jury Instructions
- Stay
- Design Professionals
- Certiorari
- email hacking
- Forum Selection
- Offers of Judgment
- Prevailing Party
- Settlements
- Assignment of Contract
- Assignment of Proceeds
- Lis Pendens
- Banking
- Designer Liability
- Finality
- Fintech
- Appellate Jurisdiction - Deadlines
- Evidence
- Evidence
- Expert
- Expert Science
- Federal Rules of Appellate Procedure
- Federal Supply Schedule
- Florida Public Records Law
- Marketing/Advertising
- Mootness
- Preservation
- Socio-Economic Programs
- Sunshine Law
- Unlicensed Contracting
- Veteran Owned Business
- Partnerships and LLCs
- Homestead
- Standing
Editors
- Of Counsel
- Partner
- Partner
- Partner
- Partner
- Partner
- Partner
- Partner
- Partner
- Associate
- Partner
- Partner
- Partner
- Partner
- Senior Associate
- Partner
- Associate
- Partner
- Senior Associate
- Partner
- Associate
- Partner
- Partner
- Partner
- Partner
- Partner
- Partner
- Partner
- Partner
- Partner
- Partner
- Partner
- Partner
- Partner
- Partner
- Partner
- Partner
- Of Counsel
- Senior Associate
- Partner
- Associate
- Partner
- Partner
- Associate
- Partner
- Partner
- Partner
Archives
- September 2024
- August 2024
- June 2024
- May 2024
- February 2024
- November 2023
- August 2023
- July 2023
- June 2023
- May 2023
- April 2023
- February 2023
- January 2023
- December 2022
- November 2022
- October 2022
- September 2022
- August 2022
- July 2022
- June 2022
- May 2022
- April 2022
- March 2022
- February 2022
- January 2022
- December 2021
- October 2021
- September 2021
- August 2021
- July 2021
- June 2021
- May 2021
- April 2021
- March 2021
- February 2021
- January 2021
- December 2020
- October 2020
- September 2020
- August 2020
- July 2020
- June 2020
- May 2020
- April 2020
- March 2020
- February 2020
- January 2020
- October 2019
- August 2019
- July 2019
- May 2019
- April 2019
- March 2019
- February 2019
- January 2019
- December 2018
- November 2018
- October 2018
- September 2018
- August 2018
- July 2018
- June 2018
- May 2018
- April 2018
- March 2018
- February 2018
- January 2018
- December 2017
- November 2017
- October 2017
- September 2017
- August 2017
- July 2017
- June 2017
- May 2017
- April 2017
- March 2017
- February 2017
- January 2017
- December 2016
- November 2016
- October 2016
- September 2016
- August 2016
- July 2016
- June 2016
- May 2016
- April 2016
- March 2016