I am often asked by potential clients if there is any real point to filing bid protests, by which they mean is there ever any real shot at winning? I tell them the key to winning is to show your competitor’s proposal failed to meet specific Request For Proposal (“RFP”) criteria, or how the agency did not follow a specific provision of the RFP.
A good example is a recent decision from the Florida Division of Administrative Hearings (“DOAH”), Jani-King Gulf Coast Region v. Escambia County Sch. Distr., DOAH No. 16-2762BID (Fla. Div. Admin. Hrgs. Aug. 26, 2016) (RO). The RFP stated that any proposal that did not include all of the requested items would be rejected as non-responsive. However, the RFP also expressly reserved to the School Board the right to waive any conditions or criteria in the RFP, and to waive any technical irregularities or deficiencies in the proposal.
In order to ensure that the selected firm would have the financial ability to handle the contract’s start-up costs, the RFP provided:
Responder must provide the last two (2) years’ audited financial statements for the Responder. (emphasis added).
The highest-ranked firm was American Facility Services (“AFS”), and the School Board recommended that the award be made to AFS. However, AFS’s proposal only included reviewed financial statements from the last two years, not audited ones. The second-ranked firm, Jani-King, protested alleging that AFS’s proposal should have been rejected.
Florida courts allow agencies to waive immaterial deficiencies in proposals, such as when a bidder includes a certified check in its bid instead of a bid bond. Because a certified check is the legal equivalent of cash, there is no material difference between a bid bond and a certified check, therefore the deviation confers no competitive advantage. E.g., Robinson Electrical Co., Inc. v. Dade County, 417 So. 2d 1032 (Fla. 3d DCA 1982).
In Jani-King, the School Board argued that it had the right to accept reviewed statements, and waive the requirement for audited statements as a technical irregularity, because the reviewed statements gave the School Board adequate assurances as to AFS’s financial stability.
The DOAH rejected the School Board’s argument because:
(1) audited financial statements provided a much higher indicia of reliability than reviewed financial statements;
(2) audited financial statements are substantially more expensive to obtain than reviewed financial statements; and
(3) it was impossible to know how many potential offerors did not bid because of the requirement that firms submit audited financial statements.
The School Board’s waiver of the requirement for financial statements therefore gave AFS an improper competitive advantage, and the DOAH recommended that the School Board award the contract to Jani-King.
If you ever find yourself in a Florida procurement where your competitor won the contract even though its proposal fails to meet a specific RFP criteria, you should probably consult with your attorney to discuss taking your shot and filing a bid protest.
- 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
- Public Finance
- Development/Land Use
- Litigation
- Contracts
- Data Security
- Trusts and Estates
- 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
- Record on Appeal
- FINRA
- Rehearing
- Loan guaranties
- Patents - Assignor Estoppel
- Dispute Resolution
- Statute of limitations
- Statute of repose
- Maritime
- Liens
- Damages
- Briefing
- Patents - Obviousness
- Request for Proposal
- Commercial Brokerage
- Department of Labor
- Trade Secrets
- Bid Writing
- Florida Bidding Strategies
- Renewal
- Attorneys' Fees
- Florida County Lands
- Florida Economic Incentive Packages
- Jury Instructions
- Stay
- Certiorari
- Design Professionals
- 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