Everyone has heard the old saying “knowledge is power.” In Florida, the Public Records Act, Ch. 119, Fla. Stat. , is a powerful tool that contractors should use to empower themselves in competitive bid situations. Governments should also proactively provide records to contractors to avoid needless protests.
The Public Records Act generally requires Florida government entities to produce copies of all their records to anyone who requests them within a reasonable amount of time unless the Act specifically exempts a item from inspection. Significantly, one Florida appellate court has indicated this means non-exempt items must be produced when they can still serve a useful purpose to the requesting party. Grapski v. City of Alachua, 31 So. 3d 193 (Fla. 1st DCA 2010).
Applying this law to a competitive bidding situation, a contractor who is interested in bidding on a particular contract can submit a records request to an agency for all its public records relating to a particular solicitation, including but not limited to its assessment of needs and cost estimate. The contractor can then use the cost estimate to determine what the agency believes to be a fair and reasonable price. The contractor can also ask the agency to please expedite the request and to produce the items by a certain date so it can review them to intelligently bid on the contract. Moreover, the contractor can maintain its anonymity by having an agent, such as an attorney, submit the public records request on its behalf.
Additionally, if the agency is still evaluating offers and formulating its decision, contractors can monitor the procurement by submitting records requests for items like scoresheets, memos, emails, etc. Generally, if a contractor wants to challenge an award to someone else it will have a very short window (within 10 days of an award) within which to review the agency’s materials and file a bid protest. Reviewing evaluation materials in advance of an award decision enables a contractor to more meaningfully review and challenge the agency’s actions.
Not every document is subject to immediate production under the Act. While contractors want to review their competitors’ bids or proposals as quickly as possible, the Act allows an agency to withhold them “until such time as the agency provides notice of an intended decision or until 30 days after opening the bids, proposals, or final replies, whichever is earlier.”
As to the government, agencies should be doing everything they can to make their procurement files available to the public. Many procurement departments have taken to creating publicly available file-share sites for each procurement and contemporaneously posting their significant documents (solicitation documents, memos, scoresheets, formal Q&A emails, etc.) to them for interested parties to review. A complete, well-organized procurement file should provide a “snapshot” of the agency’s actions.
While this advice may seem counter-intuitive to many agencies, increasing the transparency of a procurement tends to increase confidence in the process and discourage protests. Contractors frequently feel like they have to file a protest just to learn what’s “really going on.” Many of those same contractors will forgo a protest – even if they disagree with an agency’s choice – if they have adequate assurances the decision to select a competitor was the result of a process that was fair and consistent with the solicitation. Moreover, when contractors have good grounds to believe the process was not fair or consistent with the solicitation in advance of an award, they can informally bring the matter to the agency’s attention. This enables agencies to review and address potential errors in an efficient, cost-effective manner before an award is made.
Contractors who would like assistance with their bids or proposals may contact Andrew E. Schwartz and Joseph M. Goldstein for assistance. The attorneys at Shutts & Bowen have substantial experience in proactively and practically handling the challenges and issues faced by contractors providing the entire spectrum of goods and services (including construction) procured by federal and Florida state and local agencies in a timely and cost-effective manner.
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- Defend Yourself! Contract Awardees Should Intervene In Bid Protests.
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