I Would Have Bid on That! Challenging Out of Scope Modifications to Existing Government Contracts

FL Gov Contracts Blog - 030419Florida’s First District Court of Appeals just held in Asphalt Paving Sys., Inc. v. Anderson Columbia, No. 1D18-2035 (Fla. 1st DCA Feb. 18, 2019) that prospective bidders have standing to file bid protests challenging out-of-scope modifications to existing government contracts. The case is significant because it was the first Florida appellate decision to address the issue and was, in the author’s opinion, decided correctly.

In Asphalt Paving, the FDOT awarded a road maintenance contract to Anderson Columbia which provided for the maintenance of “rumble strips.” “Rumble strips” are “raised lines along the edges of roads that make a distinct noise on impact,” and they are “designed to warn drivers about speed restrictions or the roadway’s edge.” Because numerous complaints were raised about the noise generated by the rumble strips, the FDOT issued a modification to Anderson Columbia’s contract directing it to pave over them.

Asphalt Paving filed a bid protest, alleging the modification unlawfully added “out of scope” work to Anderson Columbia’s contract.  Asphalt Paving’s underlying theory was that this “out of scope” modification improperly added materially different work that it would have bid on had the FDOT issued a solicitation. The FDOT dismissed Asphalt Paving’s protest for lack of standing. The First District reversed, holding that if the FDOT was legally required to conduct a competition for the work that had been added to Anderson Columbia’s contract, and Asphalt Paving would have bid on it, then Asphalt Paving had alleged a sufficient injury to establish standing to protest. The First District was careful to note, however, that it was not addressing the merits of Asphalt Paving’s allegations, just its standing to raise them.

The undersigned believes that this case was correctly decided because modifications to existing contracts that were not contemplated at the time of the procurement can directly or indirectly prevent competitive bidding because bidders (or potential bidders) may have altered their procurement strategy if they knew the modification was contemplated.   However, most Florida governments are not required to publicly post notices that a contract is being modified; thus, it is important for companies to use their relationships with their clients and strategic use of public records requests to monitor existing contracts to become aware of potential “out of scope” modifications.

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