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Nuts & Bolts of Bid Protests

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Nuts & Bolts of Bid Protests Nuts & Bolts of Bid Protests Presented for Florida Bar CLE Robert Hosay 106 E. College Ave. Tallahassee, Florida 32301 850.222.6100 [email protected] ©2013 Foley & Lardner LLP • Attorney Advertising • Prior results do not guarantee a similar outcome • Models used are not clients but may be representative of clients• 321 N. Clark Street, Suite 2800,Chicago, IL 60654 • 312.832.4500 Preview What are we going to talk about? – Perspective – The procedural process – Tips and Pitfalls within the process – Examples of winning strategies in bid protests 2 ©2013 Foley & Lardner LLP ©2013 Foley & Lardner LLP • Attorney Advertising • Prior results do not guarantee a similar outcome • Models used are not clients but may be representative of clients • 321 N. Clark Street, Suite 2800, Chicago, IL 60654 • 312.832.4500 1 Perspective Why Protest? – Protect your marketplace. It’s about $$$! – Fundamentally unfair or biased process. – Evaluation flaws. – Winning bidder misrepresented qualifications. – Entry into new line of business; establish credibility in the market. – Expected in Florida? 3 ©2013 Foley & Lardner LLP Perspective Why Not to Protest? – Preserve relationship with customer. – You are often arguing points adverse to the same people that you want to buy your product or service. – It’s not cheap, especially when there is not a guaranteed return for the capital outlay. – Depending on facts, winning is difficult in light of high burden of proof. – 1% protest bond. 4 ©2013 Foley & Lardner LLP ©2013 Foley & Lardner LLP • Attorney Advertising • Prior results do not guarantee a similar outcome • Models used are not clients but may be representative of clients • 321 N. Clark Street, Suite 2800, Chicago, IL 60654 • 312.832.4500 2 The Procedural Process The first step once the State posts a notice of intent to award is to file a notice of intent to protest within 72 business hours. An intent to protest can be a simple written statement indicating the firm intends to file a protest. 5 ©2013 Foley & Lardner LLP The Procedural Process Upon receipt of the intent to protest, the agency has 72 hours, excluding Sat. & Sun., and state holidays, to provide the estimated contract amount to the vendor, in order to establish the 1% protest bond amount. §287.042(2)(c) Fla. Stat. The estimated contract amount shall be based upon the contract price submitted by the protestor or, if no contract price was submitted, the agency shall estimate the contract amount. The estimated contract amount is not subject to protest. 6 ©2013 Foley & Lardner LLP ©2013 Foley & Lardner LLP • Attorney Advertising • Prior results do not guarantee a similar outcome • Models used are not clients but may be representative of clients • 321 N. Clark Street, Suite 2800, Chicago, IL 60654 • 312.832.4500 3 The Procedural Process The formal written protest that includes the allegations must be filed within 10 days of filing the notice of intent. – Be careful! Some agencies (Fla. Lottery and State Group Insurance to name two) require the formal written protest and bond to be filed within 72 hours. Check the solicitation document and governing statute for the filing deadline within 72 hour period. Failure to file the formal written protest within the time prescribed by §120.57(3) Fla. Stat., or failure to post the (1%) bond or other security required by law shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. 7 ©2013 Foley & Lardner LLP The Procedural Process Upon receipt of the formal written protest that has been timely filed, the agency shall stop the solicitation or contract award process until the subject of the protest is resolved by final agency action, unless the agency head sets forth in writing particular facts and circumstances which require the continuance of the solicitation or contract award process without delay in order to avoid an immediate and serious danger to the public health, safety, or welfare. §120.57(3), Fla. Stat. 8 ©2013 Foley & Lardner LLP ©2013 Foley & Lardner LLP • Attorney Advertising • Prior results do not guarantee a similar outcome • Models used are not clients but may be representative of clients • 321 N. Clark Street, Suite 2800, Chicago, IL 60654 • 312.832.4500 4 The Procedural Process The stay means that the agency cannot re-bid, re-post, or take any other action, with the exception of emergency action, until the protest is resolved. 9 ©2013 Foley & Lardner LLP The Procedural Process Steps after the formal protest is received: – Agency offers a settlement meeting, held within 7 days in accordance with 120.57(3), Fla. Stat. Agency determines it erred, and enters into written agreement with protester that protester will withdraw protest and agency will post a new notice of intended decision. – Agency offers a settlement meeting, and the protestor withdraws. Note that these are public meetings. The intended awardee may be invited. – Agency offers a settlement meeting, and achieves a compromise. All parties sign a settlement agreement and the protester withdraws the protest. – If no settlement, the matter is referred to the Division of Administrative Hearings or the agency head, if no disputed issues of material fact are involved. 10 ©2013 Foley & Lardner LLP ©2013 Foley & Lardner LLP • Attorney Advertising • Prior results do not guarantee a similar outcome • Models used are not clients but may be representative of clients • 321 N. Clark Street, Suite 2800, Chicago, IL 60654 • 312.832.4500 5 The Procedural Process If the subject of a protest is not resolved by mutual agreement within 7 days, excluding Saturdays, Sundays, and state holidays, after receipt of the formal written protest, and if there is a disputed issue of material fact, the agency shall refer the protest to the division for proceedings. A DOAH hearing shall commence within 30 days of receipt of the protest at DOAH. Provided a full evidentiary hearing. 11 ©2013 Foley & Lardner LLP The Procedural Process A recommended order will be issued within 30 days after the hearing or after the administrative law judge receives the transcript, whichever is later. However, as a practical matter the timeline slips in complex cases. The recommended order is sent back to the agency for final agency action. You have the opportunity to take exceptions to the recommended order. 12 ©2013 Foley & Lardner LLP ©2013 Foley & Lardner LLP • Attorney Advertising • Prior results do not guarantee a similar outcome • Models used are not clients but may be representative of clients • 321 N. Clark Street, Suite 2800, Chicago, IL 60654 • 312.832.4500 6 The Procedural Process You may appeal to the First District Court of Appeals. Watch out for your remedy! – If the contract is executed and being performed your remedy may be limited. 13 ©2013 Foley & Lardner LLP 3 Types of Protest Specifications. – Specifications are inaccurate, vague, contrary to competition, incomplete, biased or include burdensome T&C’s. Intent to Award. – You lost the award. Rejection of Bids. – You spent $$$ and won but the agency decides not to award the contract. 14 ©2013 Foley & Lardner LLP ©2013 Foley & Lardner LLP • Attorney Advertising • Prior results do not guarantee a similar outcome • Models used are not clients but may be representative of clients • 321 N. Clark Street, Suite 2800, Chicago, IL 60654 • 312.832.4500 7 Specifications Protest Hypothetical and Strategy. – RFP specifications are inaccurate in a way that would allow different interpretations of how to price your reply. – File an intent to protest. – You’ve got 10 days to let the agency know that their specifications are contrary to competition, arbitrary and capricious. – File a formal protest and you’ve got 7 more days to make your point! 15 ©2013 Foley & Lardner LLP Specifications Protest Pitfall: – If you don’t protest a specifications issue you may waive the argument! Strategy: – Most specifications protest do not go to an administrative hearing…it’s easy to post new specifications! – If there is a Q&A period in the bid….then use it to either address your concerns or set up your protest. 16 ©2013 Foley & Lardner LLP ©2013 Foley & Lardner LLP • Attorney Advertising • Prior results do not guarantee a similar outcome • Models used are not clients but may be representative of clients • 321 N. Clark Street, Suite 2800, Chicago, IL 60654 • 312.832.4500 8 Specifications Protest The protest must show that the specifications are so vague that a bidder cannot submit an accurate bid or that the specifications are so unreasonable that it is impossible to comply and still be competitive. See Advocacy Ctr. for Persons with Disabilities v. DCF, 721 So. 2d 753 (Fla. 1st DCA 1998). 17 ©2013 Foley & Lardner LLP Award Protest Standard of Proof – Whether the proposed agency action is clearly erroneous, contrary to competition, arbitrary or capricious. §120.57(3)(f), Fla. Stat. Arbitrary action is "one not supported by facts or logic, or despotic." A capricious action is one "which is taken without thought or reason or irrationally." Agrico Chem. Co. v. Dep’t of Envtl. Reg., 365 So. 2d 759 (Fla. 1st DCA 1978). 18 ©2013 Foley & Lardner LLP ©2013 Foley & Lardner LLP • Attorney Advertising • Prior results do not guarantee a similar outcome • Models used are not clients but may be representative of clients • 321 N. Clark Street, Suite 2800, Chicago, IL 60654 • 312.832.4500 9 Award Protest The protesting bidder must show that the agency’s action is contrary to: – The solicitation specifications; – The agency’s rules or policies; or – The agency’s governing statutes. See § 120.57(3)(f), Fla. Stat. 19 ©2013 Foley & Lardner LLP Award Protest – If you win: Legal counsel should already be involved. Prepare to perform the contract. Utilize the Chapter 119 public records request to protect your award: – Review procurement file. – Review other proposals.
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