As Joe Goldstein and I have stated, the key to winning a Florida bid protest is to point out a specific, objective flaw that occurred during the evaluation of bids or proposals. Once in a while, however, the government’s award decision is so unreasonable that courts will overturn them for “getting it wrong.” That’s basically what just happened when the Florida Division of Administrative Hearings (“DOAH”), overturned an award on in All Season Air Conditioning v. FDOT, DOAH No. 17-3184BID (Fla. Div. Admin. Hrgs. Aug. 28, 2017). Even in that case, however, DOAH made specific findings of fact that showed why a reasonable person could not agree with the government.
The scope of the invitation to bid or ITB was for all labor, materials, and incidentals necessary to provide maintenance and repair of 232 HVAC units located at 65 facilities along Florida’s Turnpike. The 65 facilities span well over a hundred miles along the Turnpike, and the contractor will have to provide bimonthly maintenance on each of the 232 HVAC units. Moreover, the contractor must be available 24 hours a day, 365 days a year to provide unscheduled, emergency repair services on all 232 HVAC units – meaning that the contractor must be able to respond to all unscheduled repair calls within three hours of receiving a call.
In order to insure that the selected contractor had the capability to perform this work, bidders were required to provide proof that they had been licensed and actively involved in this type of business for a minimum of three years. Furthermore, the references had to “specifically be related to HVAC maintenance, repair, installation, replacement services of commercial facilities similar in size, technical scope, and volume of work” as that called for in the ITB. The ITB also specifically said these references would be reviewed by FDOT in order to determine whether a bidder was capable of performing the contract.
The low bidder, Blue Ray’z Heating and Air Conditioning, Inc. (“Blue Ray’z”) submitted a bid of $128,630.00. However, Blue Ray’z references in its bid were: (1) repair 12 HVAC units per year at the same location for $5,000 a year (5% of the number of HVAC units called for in the ITB, 3% of Blue Ray’z current bid); (2) repair 8 HVAC units for an unknown price (3% of the work called for in the ITB); (3) install 3 HVAC units for $21,300 (1% of the HVAC units called for in the ITB, 16% of the Blue Ray’z current bid); and (4) installation of two HVAC units for $17,000 (.8% the number of HVAC units called for in the ITB, 13% of Blue Ray’z current bid).
As one would expect, DOAH found that FDOT had failed to review Blue Ray’z references to determine if they were “similar in size, technical scope, and volume of work”, rendering FDOT’s finding that Blue Ray’z could perform the contract arbitrary and capricious. More importantly, DOAH also essentially found that because Blue Ray’z references were all only for very small fractions of the work called for in the ITB a reasonable person could not consider them to be “similar”, therefore awarding Blue Ray’z the contract was arbitrary and capricious.
In other words, it is possible for a protester to show the government just “got it wrong.” But in order to do so a protester must have hard facts that explain why the government was wrong.
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.
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- Bidding Smarter in Florida: “Alternate” Bids and Proposals are a Good Thing.
- Rock the Boat, Baby – They’ll Get Over It. Contractors Should Use the Q&A Process Strategically and Seriously Consider Spec Challenges.
- Defend Yourself! Contract Awardees Should Intervene In Bid Protests.
- I Would Have Bid on That! Challenging Out of Scope Modifications to Existing Government Contracts
- Buy Low! Businesses Need Not Bid On County-Owned Lands in Florida
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