Blueprint of a Bid Protest

1. Blueprint of a Bid Protest

2. …well, more of a thumbnail of a bid protest.

3. About This Presentation: • Not intended to be exhaustive coverage of aspects of a bid protest, rather, only a summary of those statutes and rules that relate to bid protests filed in Florida pursuant to section 120.57(3), Florida Statutes. • Current text of the Florida Statutes can always be reviewed at http://www.flsenate.gov/Welcome/index.cfm(use menu on upper left to view or search Statutes & Constitutions). • Current text of the Florida Administrative Code can always be reviewed at http://fac.dos.state.fl.us .

4. What we will be looking at… • Section 120.57, Florida Statutes • Chapter 287, Florida Statutes • Chapter 119, Florida Statutes • Chapter 28-106, Florida Administrative Code

5. A. Introduction B. Filing of a Bid Protest Notice of Protest Formal Written Protest Protest Bond C. Proceedings at the Division of Administrative Hearings (DOAH) Sent by the Agency to DOAH Discovery and Public Records Requests Proposed Recommended Order Final Hearing Recommended Order D. Final Order rendered by the Agency E. Judicial Review What will we be covering…

6. Initiating a Bid Protest How is it done?

7. Notice of ProtestSection 120.57(3), Florida Statutes • (3)  (b)  Any person who is adversely affected by the agency decision or intended decision shall file with the agency a notice of protest in writing within 72 hours after the posting of the notice of decision or intended decision. With respect to a protest of the terms, conditions, and specifications contained in a solicitation, including any provisions governing the methods for ranking bids, proposals, or replies, awarding contracts, reserving rights of further negotiation, or modifying or amending any contract, the notice of protest shall be filed in writing within 72 hours after the posting of the solicitation. The formal written protest shall be filed within 10 days after the date the notice of protest is filed. Failure to file a notice of protest or failure to file a formal written protest shall constitute a waiver of proceedings under this chapter. The formal written protest shall state with particularity the facts and law upon which the protest is based. Saturdays, Sundays, and state holidays shall be excluded in the computation of the 72-hour time periods provided by this paragraph.

8. Section 120.57(3), Florida Statutes • (3)  (b)  Any person who is adversely affected by the agency decision or intended decision shall file with the agency a notice of protest in writing within 72 hours after the posting of the notice of decision or intended decision. [ ]

9. So you have a Notice of Protest. Now what?

10. Section 120.57(3), Florida Statutes • (3)  (b)  Any person who is adversely affected by the agency decision or intended decision shall file with the agency a notice of protest in writing within 72 hours after the posting of the notice of decision or intended decision. With respect to a protest of the terms, conditions, and specifications contained in a solicitation, including any provisions governing the methods for ranking bids, proposals, or replies, awarding contracts, reserving rights of further negotiation, or modifying or amending any contract, the notice of protest shall be filed in writing within 72 hours after the posting of the solicitation. The formal written protest shall be filed within 10 days after the date the notice of protest is filed. Failure to file a notice of protest or failure to file a formal written protest shall constitute a waiver of proceedings under this chapter. The formal written protest shall state with particularity the facts and law upon which the protest is based. Saturdays, Sundays, and state holidays shall be excluded in the computation of the 72-hour time periods provided by this paragraph.

11. Section 120.57(3), Florida Statutes • The formal written protest shall be filed within 10 days after the date the notice of protest is filed. Failure to file a notice of protest or failure to file a formal written protest shall constitute a waiver of proceedings under this chapter.

12. What about the Protest Bond?

13. Protest Bond RequirementSection 287.042(2)(c), Florida Statutes • (2)(c)  Any person who files an action protesting a decision or intended decision pertaining to contracts administered by the department, a water management district, or an agency pursuant to s. 120.57(3)(b) shall post with the department, the water management district, or the agency at the time of filing the formal written protest a bond payable to the department, the water management district, or agency in an amount equal to 1 percent of the estimated contract amount. For protests of decisions or intended decisions pertaining to exceptional purchases, the bond shall be in an amount equal to 1 percent of the estimated contract amount for the exceptional purchase. The estimated contract amount shall be based upon the contract price submitted by the protestor or, if no contract price was submitted, the department, water management district, or agency shall estimate the contract amount based on factors including, but not limited to, the price of previous or existing contracts for similar commodities or contractual services, the amount appropriated by the Legislature for the contract, or the fair market value of similar commodities or contractual services. The agency shall provide the estimated contract amount to the vendor within 72 hours, excluding Saturdays, Sundays, and state holidays, after the filing of the notice of protest by the vendor. The estimated contract amount is not subject to protest pursuant to s. 120.57(3). The bond shall be conditioned upon the payment of all costs and charges that are adjudged against the protestor in the administrative hearing in which the action is brought and in any subsequent appellate court proceeding. In lieu of a bond, the department, the water management district, or agency may, in either case, accept a cashier's check, official bank check, or money order in the amount of the bond. [ ]

14. Section 287.042(2)(c), Florida Statutes • (2)(c)  Any person who files an action protesting a decision or intended decision pertaining to contracts administered by the department, a water management district, or an agency pursuant to s. 120.57(3)(b) shall post with the department, the water management district, or the agency at the time of filing the formal written protest a bond payable to the department, the water management district, or agency in an amount equal to 1 percent of the estimated contract amount. [ ]

15. Doesn’t have to be a Bond Section 287.042(2)(c) • [ ]In lieu of a bond, the department, the water management district, or agency may, in either case, accept a cashier's check, official bank check, or money order in the amount of the bond. [ ]

16. Section 287.042(2)(c), Florida Statutes • [ ] The estimated contract amount shall be based upon the contract price submitted by the protestor or, if no contract price was submitted, the department, water management district, or agency shall estimate the contract amount based on factors including, but not limited to, the price of previous or existing contracts for similar commodities or contractual services, the amount appropriated by the Legislature for the contract, or the fair market value of similar commodities or contractual services. [ ]

17. Section 287.042(2)(c), Florida Statutes • [ ]The agency shall provide the estimated contract amount to the vendor within 72 hours, excluding Saturdays, Sundays, and state holidays, after the filing of the notice of protest by the vendor. [ ]

18. Protest Bond Used to Cover Costs if Protestor Looses • [ ] The bond shall be conditioned upon the payment of all costs and charges that are adjudged against the protestor in the administrative hearing in which the action is brought and in any subsequent appellate court proceeding. [ ]

19. So you’ve got a Written Protest and You’ve got the Protest Bond, now what’s the next step?

20. Stop the Solicitation

21. Section 120.57(3)(c), Florida Statutes • (c)  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.

22. Try to work it out Evaluate and Educate

23. Section 120.057(3)(d) • (d)1.  The agency shall provide an opportunity to resolve the protest by mutual agreement between the parties within 7 days, excluding Saturdays, Sundays, and state holidays, after receipt of a formal written protest. • 2.  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 no disputed issue of material fact, an informal proceeding shall be conducted pursuant to subsection (2) and applicable agency rules before a person whose qualifications have been prescribed by rules of the agency. • 3.  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 under subsection (1).

24. DOAH or Informal Proceeding • 1. If no material facts – Informal Proceeding • - Handled by Agency Hearing Officer • 2. If material facts – Formal Proceeding • - Sent to DOAH

25. Rules Regarding Hearings • Hearings Involving Disputed Issues of Material Fact • Chapter 28-106, Part I, Florida Administrative Code • Proceedings and Hearings Not Involving Disputed Issues of Material Fact • Chapter 28-106, Part II, Florida Administrative Code

26. Focus on DOAH Proceedings

27. Once Received by the Division • Initial Order Issued by assigned DOAH Judge • Provides Final Hearing Date and Expedited Discovery Schedule.

28. Discovery • Interrogatories • Questions on paper • Requests for Production • Documents and things • Requests for Admissions • Yes or No • Depositions • Questions in person

29. …under oath

30. Public Records RequestsChapter 119, Florida Statutes • Are used in addition to discovery to get records from the agency.

31. Section 119.011, Florida Statutes • (11)  "Public records" means all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software, or other material, regardless of the physical form, characteristics, or means of transmission, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency.

32. Pleadings • During discovery, motions and pleadings (arguments on paper), related to discovery or related to other matters concerning the litigation, may be filed and hearings may take place to resolve matters argued therein.

33. Examples: • Petitions to Intervene • Motions • Dismiss • Protective order • Summary recommended order • More time • Hearings on Petitions and Motions

34. Final Hearing - Like a Trial • Opening arguments • Witnesses are called • Direct and cross examination • Documents are offered into evidence • Closing arguments

35. Proposed Recommended Order • A draft order the court may use. • Based upon evidence presented throughout the case and offered at Final Hearing • Applies the relevant law to the facts • Reaches a conclusion • Last chance to make your point!

36. Final Stages • DOAH issues Recommended Order • Case sent back to Agency to issue Final Order • Loosing party may appeal Agency Final Order.

37. Appeal to the Court • Loosing party would appeal the Final Order to the Appellate Court

38. Disclaimer - This is merely a brief summary of portions of chapter 120, 287 and 119, Florida Statutes, and the referenced Administrative Rules. and is not, in any way, to be used in substitute for reviewing these statutes or rules. - Specific Questions should be first directed to either your Purchasing Director or General Counsel’s Office