Construction Bid Protests in Florida: Top 10 Things Contractors Should Know
Reading Time: 9 minutes
Once a contractor in Florida receives notice that an agency soliciting bids intends to award a contract to another bidder, the contractor may wonder why its bid was unsuccessful. If a contractor believes its bid should have been the winning one, Florida law allows the contractor to protest the soliciting agency’s award. The process for bid protesting can be a tricky one. Filing a construction bid protest must be done quickly, and it comes with its fair share of risks. This article provides an overview of the top ten things contractors should know about construction bid protests in Florida.
1. Agency Rules
Though it may seem obvious, understanding the substantive and procedural bid protesting rules for the agency soliciting bids is critical. Every state or local agency abides by its own set of rules when it comes to soliciting bids and accepting bid protests. It is important that contractors know and understand the rules and procedures for the specific agency to which they are submitting a construction bid protest, in order to have any chance of success. Failure to follow the soliciting agency’s rules will result in an ineffective bid protest.
A contractor’s standing in the bid race will be highly determinative in the success of its bid protest. To have standing in a bid protest in Florida, a protesting contractor’s bid must be competitive with the winning bid, but also responsible and responsive. A responsible bidder is one that possesses enough resources and skill to complete the project in a timely manner with good workmanship. A responsive bid is one that conforms in all material aspects to the solicitation. Fla. Stat. § 287.012(26). This includes not only conforming to the substantive aspects of the solicitation, but also using the correct forms and processes. Absent extraordinary circumstances where several bids ahead of the protesting contractor were erroneously accepted, filing a bid protest when its bid came in third place or lower will likely be a costly misstep. If the winning bid was erroneously accepted, but a bid other than the protesting contractor’s is the next responsive and responsible bid, the bid protest will be futile.
3. Timing Requirements
Generally, bid protests must be filed very quickly once notice of the soliciting agency’s intent to award a contract is provided. However, before filing a bid protest, a contractor must file a notice of intent to protest. Notice of intent to protest may be required within seventy-two hours of the notice of intent to award a contract. Once a contractor has submitted its notice of intent to protest, the contractor must then file its bid protest within a certain number of days of notifying the agency of its intent to protest. If a contractor fails to meet the deadlines for submitting a bid protest, it will waive its right to protest. Fla. Stat. § 120.57(3).
For Florida Department of Transportation projects, a contractor must submit notice of protest in writing within seventy-hours hours after the posting of the Department’s notice of decision. However, some localities, such as the City of Jacksonville, demand a quicker turnaround by requiring notice of protest to be filed within forty-eight hours of the city’s notice of decision or intended decision.
4. Bond Requirements
Under Florida law, a contractor may be required to post a bond in order to file a bid protest. For example, Florida Department of Transportation projects require a contractor who wishes to file a bid protest to post a bond, equivalent to one percent of the lowest bid submitted or $5,000, whichever is greater. Fla. Stat. § 337.11(5)(a).
The bond posting requirement is designed to ensure the contractor pays any and all charges against it in the administrative hearing on its protest. If the contractor pays such costs, its bond will be returned to it. If the contractor prevails in its bid protest, it will also be entitled to recover all costs and charges, minus attorneys’ fees. Fla. Stat. § 287.042(2)(c). However, if the contractor fails to pay the costs of the administrative hearing, it will forfeit the bond it posted when submitting its bid protest.
5. Grounds for Disqualification
There are various reasons for which a winning bid can be disqualified. However, some grounds for disqualification are more likely to lead to a successful bid protest. For example, if a contractor can establish that the soliciting entity failed to follow its own rules and procedures, or that the winning bid failed to follow the bid solicitation requirements in a way that led to an unfair advantage over other bidders, the contractor’s bid protest will have a better chance of success. Other effective arguments for disqualification of the winning bid can be based on the unresponsiveness or irresponsibility of the winning bidder, untimely bidding, or arbitrary rejection by the soliciting agency. More information on effective grounds for disqualification can be found in our Top 10 Grounds for Construction Bid Protests in Florida article.
6. Administrative Hearing Procedures
Filing a construction bid protest in Florida may ultimately lead to an administrative hearing on the bid protest. This is true for all projects that fall under the scope of Florida’s Administrative Procedure Act, codified at Chapter 120, Florida Statutes.
After a contractor files a bid protest, there is a seven-day period in which the contractor and soliciting agency may work toward resolving the bid protest. If a mutual agreement is not reached within that seven-day period, an administrative hearing will be conducted. The specific process for the administrative hearing will be determined by whether the bid protest presents a disputed issue of material fact. If a disputed issue of material fact exists, the hearing will follow the procedures set forth in Section 120.57(1), Florida Statutes. If no disputed issue of material fact exists, the hearing will follow the procedures set forth in Section 120.57(2), Florida Statutes. Before filing a bid protest, a contractor should be familiar with the formal and informal administrative hearing processes, so it is prepared for either type of hearing.
If a contractor believes the administrative law judge’s ruling is incorrect, the contractor can appeal the administrative decision to a Florida District Court of Appeal. See Fla. Stat. § 120.68.
7. Bid Solicitation Protest vs. Contract Award Protest
This article has been tailored to a situation where the soliciting agency has provided notice of its intent to award a contract, and a contractor protests the award of the contract. This is technically referred to as a “contract award protest,” and is the type of bid protest that generally comes to mind when considering bid protests. However, there is another type of bid protest, known as a “bid solicitation protest” in which a soliciting agency’s solicitation specifications are protested, rather than its intent to award a contract. Unlike contract award protests, notice of intent to protest a bid specification must be made within seventy-two hours of the receipt of project plans and bidding specifications. See Capeletti Bros., Inc. v. Dept. of Transportation, 499 So. 2d 855 (Fla. 1st DCA 1987) (holding that a bidding contractor in a Florida Department of Transportation state highway project waived its right to administrative procedures by failing to meet the seventy-two hour deadline). A contractor must know the type of protest it desires to make in order to protest in a timely and effective manner.
8. Florida Projects vs. Federal Projects
Though a contractor may be bidding on a Florida construction project, it must know whether it is protesting a bid solicited by a Florida agency or a federal agency. As stated above, each soliciting agency has its own rules and processes that contractors must follow in submitting and protesting construction bids. The same is true for Florida state or local agencies versus federal agencies. Bid solicitation for federal projects is usually done through the General Accounting Office or GAO. Bid solicitation for non-federal projects may be done by the state of Florida or a county or municipality. A contractor must understand which government the soliciting agency operates under to understand the rules it will be expected to follow.
9. Documentation Requirements
To succeed in a bid protest, a contractor must present factual and legal arguments that support its claims. In order to present the strongest arguments in protest of the winning bid, the contractor should gather documents related to the bidding and evaluation process. Helpful documents include, but are not limited to, the bid solicitation documents from the entity soliciting bids, the bid and other relevant bids, bid tabulations from the soliciting entity, minutes of any meetings of bid evaluators, and any communications from the soliciting entity related to the bid solicitation or award.
10. Filing a Bid Protest Can Be Risky
Considering the first nine items in this list, it is of little surprise that filing a construction bid protest carries a healthy dose of risk. The rules specific to each soliciting agency create a minefield of ways to spoil a contractor’s chances of successfully protesting a bid. If a contractor files an unsuccessful protest, it can be left responsible for paying the costs associated with an administrative hearing. If the contractor fails to pay those costs, it will forfeit its bond. In addition to risking an unsuccessful bid protest, raising issues with the bid solicitation process or award may cause the procuring agency to reject all bids and start the solicitation process over. Fla. Stat. § 337.11(4) (granting the Florida Department of Transportation authority to reject all bids). However, filing a successful bid protest and being awarded the contract can be a huge payoff.
Because construction bid protests are a high-risk, high-reward game, contractors should seek legal counsel who will help them fully evaluate their chances of success.
- James O. “Joby” Birr, Esq.
- John M. Stevelinck, Jr., JD Candidate 2022