The Public Procurement And Bidding Process In Florida

For many companies, the award of a single public contract can help cement long-lasting relationships that may result in years of continuing business.  Therefore, it is important for companies of all sizes to know and understand the requirements and bidding process in Florida when bidding on a public procurement contract.  A company’s business development department must first ensure the contract is worth the time and money spent in not only preforming the contract, but in compiling a worthy bid. Knowing whether your company can perform the contract, meet deadlines, and provide all requested information is vital in determining whether you should bid on a specified contract.

To decide if your company should enter the public procurement bidding process in Florida, first assess the contract performance and deadline requirements.

How Does The Bidding Process In Florida Differ For Construction?

First, it’s important to understand that bidding requirements and processes differ according to the particular industry and services requested. Bidding for public construction contracts, which is governed by Section 255.20, Florida Statutes, provides valuable insight on the typical bidding requirements and processes. Under this statute, charter counties must engage in a competitive bidding or proposal process when undertaking new construction projects. A county, municipality, special district, or other political subdivision of the state seeking to construct or improve a public building, structure, or other public construction works must competitively award to an appropriately licensed contractor.[1]    The term “competitively award” means to award contracts based on the submission of sealed bids, proposals submitted in response to a request for proposal, proposals submitted in response to a request for qualifications, or proposals submitted for competitive negotiation.[2]

Competitive bidding statutes, like section 255.20, are enacted to protect the public’s interests.[3] Under these statutes, a public entity cannot arbitrarily or capriciously discriminate among bidders or make the award based on personal preference.4 Accordingly, reciprocal benefits and obligations are conferred upon the company and the public entity. The company is assured fair consideration of its offer, and is guaranteed the contract if its offer is the lowest responsible and responsive offer.  In return, goods and services required by public authorities can be acquired at the lowest possible cost.[4]

Public Procurement Notice

The competitive bidding process in Florida, which is almost exclusively governed by statute, usually involves advertisement for the submission of sealed bids, the public opening of bids, and the award of contracts to the lowest responsive and responsible offer. Therefore, the company must know where to find the agency’s solicitations. The agency may advertise the solicitation on its website, in local newspapers, trade publications, and/or specific Internet-based notification sites.

A public notice will provide an interested company with important information, such as the services being sought, deadlines that must be satisfied, and how to obtain further information about the project. The company’s business development department should carefully read the entire notice to determine whether the project will be a good fit. Additionally, the notice will specify the type of solicitation being sought, which is crucial in determining whether to participate in the bidding process. Types of solicitations include, a request for proposal (RFP), request for qualifications (RFQ), and an invitation to bid. [5]

After all responses are received, the agency will open the bids and identify the bidders at a designated time and place.  The agency will then select the lowest responsible and responsive offer.[6] A bid is responsive if it provides all requested information.[7] Something as simple as failing to sign or include a specified form are grounds for rejecting the entire bid.  To determine whether the bid is responsible, the agency will investigate whether the company has a history of failing to timely and satisfactorily perform prior contracts.[8] The agency may also consider past criminal convictions and other infractions when making this determination.[9]

Does The Bidding Process In Florida Vary By Agency?

With many different agencies and perpetual projects, government contracts provide valuable opportunities to the right bidder.  To secure the bid, a company must understand the bidding process in Florida and the specific requirements of the particular government agency.  This includes a working knowledge of the methods of pursuing a contract, specifications for each type of agency, and awareness of paths to disqualification.  This knowledge is important because the process varies depending on the type of contract, its value, and the specific government agency.

While the bidding process varies by agency, there are certain steps that a company should follow to seek and secure a government contract.  Generally, the steps include: identifying opportunities; procuring copies of pertinent bid documents and terms; pre-bid meetings and/or inspection of existing public facilities; assessing whether the company can meet the bid terms; negotiations and the final agreement.

Public Procurement Websites

Agencies typically operate websites that list pending solicitations or utilize privately-operated services that advertise the solicitations and receipt of bids.  Once a company identifies an opportunity, it should procure a copy of bid documents and become familiar with bid terms.  Evaluation of bid documents allows a company to properly assess whether it can satisfy the bid terms.  Often, bid terms will require a pre-bid meeting and will allow inspection of the public facilities. If inspection is permitted, the company should be cognizant of any public records limitations on the knowledge acquired through inspection, such as those relating to public safety considerations.

After receipt and review of the bidding documents, the company must determine what price to bid and which terms to include in the proposed agreement.  Common requirements/terms include:

(a) Submittal deadlines;

(b) License requirements, and attachment of any required forms;

(c) Insurance, indemnification, and bonding;

(d) Time for completion of the work;

(e) The time which the bid and pricing must remain open for acceptance;

(f) Materials specified, and whether alternatives are permissible or required;

(g) The cost of permits or other charges by the agency or agencies with

jurisdiction over the project; and

(h) Failure to supply all required information, such as relevant prior experience.[10]

Many times, bidders will be disqualified for failure to satisfy a deadline, include a price or proper signature, or provide necessary licensure.  Although agencies have broad discretion in soliciting and accepting bids, the process by which they select a bidder is determined by the law applicable to the particular agency. [11] When an agency violates these policies, protestors often challenge the decision on both substantive and procedural grounds.  However, the agency’s selection is generally reviewed under an arbitrary and capricious standard, making reversal unlikely. [12] In sum, while agency discretion is not unlimited and may be challenged, it is best to heed the policies and procedures for the submission of bids.

Finally, the selection committee evaluates the responses based on criteria included in the solicitation document. The committee will then award the highest-ranked bidder with the contract and will notify the bidder by telephone, email, letter, or at public meetings. For this reason, a company must provide up-to-date and correct contact information in its bid response.

Once the agency awards the contract, the winning bidder must either enter into or negotiate a contract.  It’s important for the company to realize that the parties can form a binding contract without execution of a subsequent, independent writing.[13] If the company submitted the bid, the agency accepted the bid, and the agency notified the company of acceptance, a court will likely conclude that the parties formed a binding contract.[14] Accordingly, courts have held a bidder’s mistake in formulating its price to be binding upon acceptance by the public agency.[15]  While courts sometimes relieve the bidder of this mistake, the circumstances justifying such relief are limited.[16]

Conclusion

As evidenced, the bidding process for public procurement contracts is extensive. While these contracts provide tremendous opportunities, companies must be well versed on the bidding process in Florida before participating. Should you have any questions regarding this process or find yourself in a bid dispute, you should contact a board-certified lawyer with knowledge of these issues to guide you through this challenging process.


Authors:
Patrick Krechowski, Esq.
Charlie B. Jimerson, Esq.
Alexa Nordman, J.D. Candidate


[1] Emerald Corr. Mgmt. v. Bay Cnty. Bd. of Cnty. Comm’rs, 955 So. 2d 647, 652 (Fla. Dist. Ct. App. 2007).

[2] Emerald Corr. Mgmt., 955 So. 2d at 652.

[3] Id.

[4] Id.

[5] See Id. at 651.

[6] Am. Eng’r and Dev. Corp. v. Town of Highland Beach, 20 So. 3d 1000, 1000 (Fla. 1st DCA 2009).

[7] Id.

[8] Id.

[9] Id.

[10] See William J. Cea, Overview of the Bidding Process for Public Construction Projects, August, 2014.

[11] See Liberty County v. Baxters Asphalt & Concrete, Inc., 421 So.2d 505, 507 (Fla.1982); Emerald Corr. Mgmt., 955 So. 2d at 650.

[12]Emerald Corr. Mgmt., 955 So. 2d at 650 (“While we recognize the wider discretion afforded counties and cities in exercising discretion in accepting or rejecting responses to RFPs, the decisions still must be subject to review to determine whether the governing body acted arbitrarily or capriciously.”); See also City of Sweetwater v. Solo Constr. Corp. 823 So. 2d 798 (Fla. 3d DCA 2002).

[13] See Schloesser v. Dill, 383 So.2d 1129, 1130 (Fla.3d DCA 1980).

[14] Id.

[15] See Graham v. Clyde, 61 So.2d 656, 658 (Fla.1952).

[16] See State Board of Control v. Clutter Construction Corporation, 139 So.2d 153 (1st DCA 1962); Lassiter

Construction Company v. School Board for Palm Beach County, 395 So.2d 567, 569 (Fla. 4th DCA 1981)

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