Introduction
Bradley has been publishing an ongoing survey of state-level bid protest processes and procedures (see, e.g., our posts on “Bid Protests in Georgia,” “Bid Protests in the District of Columbia,” “Bid Protests in New York,” “Bid Protests in Virginia,” “Latest Update on Bid Protests in Alabama,” and “Bid Protests in Massachusetts”). For the next state in this series, we focus on the bid protest procedures in Florida.
What Rules Apply?
Florida’s Administrative Procedure Act outlines procedures for protesting certain state agency solicitations and contract awards.
Who May Protest?
A person must be “adversely affected” by a state agency decision or intended decision to file a protest. For a post-award protest, this generally requires protesters to show that they would likely receive an award if their challenge succeeded. Here, a “decision or intended decision” refers to:
- The contents of a solicitation;
- A determination that a specified procurement can be made only from a single source;
- A rejection of a response or all responses to a solicitation; or
- A written notice of intention to award a contract.
When Must a Protest Be Filed?
Florida has strict deadlines for filing bid protests. Protesters must first file a written notice of protest within 72 hours (excluding Saturdays, Sundays, and state holidays) after the posting of an agency decision or intended decision. For protests challenging terms, conditions, or specifications contained in a solicitation (i.e., a “pre-award” protest), the written notice of protest must be filed within 72 hours after the posting of a solicitation.
After filing a written notice of protest, the protester must file a formal written protest within 10 days. Failure to follow these timelines qualifies as a waiver of bid protest proceedings.
What Must the Protest Include?
The formal written protest must include the particular factual and legal bases for the protest. The protester generally must also file a protest bond equal to 1% of the estimated contract value.
What Are the Procedures for Bid Protests in Florida?
Once a formal written protest is timely filed, the agency generally must stop the solicitation or contract award process until the protest is resolved. However, the agency may continue with the solicitation or contract award process when necessary to avoid immediate and serious danger to the public health, safety, or welfare.
The agency must provide an opportunity to resolve the protest by mutual agreement between the parties within seven days of receiving the protest (excluding Saturdays, Sundays, and state holidays). If the parties do not reach a mutual agreement, and there is no disputed issue of material fact, then the agency will hold informal proceedings to resolve the protest. However, if there is a disputed issue of material fact, the agency must refer the protest to the Florida Division of Administrative Hearings (DOAH).
For a competitive procurement protest, a DOAH administrative law judge (ALJ) will generally determine whether the agency’s proposed action was contrary to statute, regulation, agency policy, or the solicitation specifications. The protester generally must establish that the agency’s action was clearly erroneous, contrary to competition, arbitrary, or capricious.
Will a Hearing Be Held?
The administrative law judge must hold a hearing within 30 days of receiving the protest and generally must issue a recommended order within 30 days of the hearing. The recommended order will include findings of fact, legal conclusions, and a recommended disposition. The agency must then enter a final order within 30 days of the issuance of the recommended order.
The agency may adopt the recommended order as its final order. However, it may reject or modify the factual and legal findings under certain circumstances. If the agency rejects or modifies any such findings, it must provide its reasoning.
What Are the Appeal Procedures?
Under Florida’s Administrative Procedure Act, protesters may seek judicial review of final agency actions arising from a bid protest.
Wait, I Have More Questions!
If you have any questions about bid protests in Florida — or about state-level bid protests generally — please do not hesitate to contact Aron Beezley, Nathaniel Greeson, or Will Stupski.