The Florida Bid Protest Process and Deadlines

A protest of a Florida state agency’s purchasing decision follows a fixed sequence set by section 120.57(3), Florida Statutes, and it moves faster than almost any other kind of litigation. This page walks through that sequence for a state agency procurement. Universities, school districts, counties, and cities follow different or modified rules, which we describe on our page on county, city, school district, and university bid protests.

If a decision has been posted, the clock is already running. Telephone 850-567-8445, or send a message with the form on this page.

Why Florida Has Bid Protests

Public contracts in Florida are competed for the public’s benefit, not for the benefit of any one vendor. The Legislature has declared that “fair and open competition is a basic tenet of public procurement,” that such competition “reduces the appearance and opportunity for favoritism,” and that it “inspires public confidence that contracts are awarded equitably and economically” (section 287.001, Florida Statutes).

The Florida Supreme Court described the same purposes in 1931. Competitive bidding laws, it explained, exist to protect the public against collusive contracts; to secure fair competition upon equal terms to all bidders; to remove not only collusion but the temptation for it; to close all avenues to favoritism and fraud; to secure the best values at the lowest possible expense; and to give everyone who wants to do business with the government an equal chance, through an exact comparison of bids. Wester v. Belote, 103 Fla. 976, 138 So. 721, 723–24 (1931). The Court has since repeated that bidding laws exist to protect the public against collusive contracts and to prevent favoritism toward contractors by public officials. Liberty Cnty. v. Baxter’s Asphalt & Concrete, Inc., 421 So. 2d 505, 507 (Fla. 1982).

A bid protest is how those purposes are enforced in a particular procurement. Florida courts have described the whole scheme of public bidding as meant “to insure the sanctity of the competitive atmosphere prior to and after the actual letting of the contract.” Harry Pepper & Assocs., Inc. v. City of Cape Coral, 352 So. 2d 1190, 1192 (Fla. 2d DCA 1977). The protest gives a vendor that has been treated unfairly a short, structured way to make the agency follow the law and its own solicitation before the contract is signed. Because it exists to protect the competition, the question in a protest is not whether the protester would have preferred a different result, but whether the agency kept to the rules that make the competition fair.

Step 1: The Agency Posts Its Decision

An agency announces a decision or intended decision about a solicitation, a contract award, or an exceptional purchase by posting it electronically. The posting must carry a warning that failure to file a protest within the time prescribed in section 120.57(3) is a waiver of proceedings under chapter 120. The protest period is counted from the posting.

Step 2: Notice of Protest Within 72 Hours

A person adversely affected by the decision must file a written notice of protest with the agency within 72 hours after the posting. Saturdays, Sundays, and state holidays are not counted. The notice is a short document, but it must be in writing, it must reach the agency in the way the solicitation requires, and it must be on time.

Step 3: Formal Written Protest and Bond Within 10 Days

The formal written protest is due within 10 days after the date the notice of protest is filed. It must state with particularity the facts and law on which the protest is based, so the grounds should be developed fully from the start. The statute excludes weekends and state holidays from the 72-hour periods only; it does not exclude them from the 10 days.

For a protest of a state agency contract, the protester must also post a bond with the formal written protest, set at 1 percent of the estimated amount of the contract (section 287.042(2)(c), Florida Statutes). The agency must give the vendor the estimated contract amount within 72 hours after the notice of protest is filed, again not counting weekends and state holidays, and that estimate cannot itself be protested. A cashier’s check, official bank check, or money order may be accepted in place of a bond.

Step 4: The Award Process Stops

Once a timely formal written protest is received, the agency must stop the solicitation or contract award process until the protest is resolved by final agency action. The exception is narrow: the agency head must set out in writing the particular facts and circumstances that require the process to continue without delay to avoid an immediate and serious danger to the public health, safety, or welfare. The Department of Management Services has a separate statutory alternative for its own solicitations (section 287.042(2)(b)).

Step 5: Seven Days to Resolve the Protest by Agreement

The agency must give the protester an opportunity to resolve the protest by mutual agreement within 7 days after it receives the formal written protest, not counting weekends and state holidays. Some protests are resolved at this stage.

Step 6: Hearing at the Division of Administrative Hearings

If the protest is not resolved and there is a disputed issue of material fact, the agency refers it to the Division of Administrative Hearings (DOAH), where an administrative law judge is assigned. If no material fact is in dispute, the protest is decided in an informal proceeding instead.

At DOAH the schedule is compressed. The hearing must begin within 30 days after the division receives the formal written protest, and the judge’s recommended order is due within 30 days after the hearing or after the judge receives the transcript, whichever is later. The parties may waive these time limits by agreement. In practice, document requests, depositions, and motions are fitted into those few weeks. The vendor named in the intended award ordinarily may intervene to defend it.

What the Protester Must Prove

The protester has the burden of proof. The judge decides, on the evidence presented at the hearing, whether the agency’s proposed action is contrary to the agency’s governing statutes, the agency’s rules or policies, or the solicitation specifications. The protester must show that the proposed action was clearly erroneous, contrary to competition, arbitrary, or capricious. When an agency rejects all bids, proposals, or replies, the test is harder to meet: the protester must show that the decision was illegal, arbitrary, dishonest, or fraudulent.

Each part of that test has a settled meaning:

• A de novo proceeding. The judge takes evidence afresh, but the hearing is a form of review of the action the agency took, not a new procurement: “the object of the proceeding is to evaluate the action taken by the agency.” State Contracting & Eng’g Corp. v. Dep’t of Transp., 709 So. 2d 607, 609 (Fla. 1st DCA 1998); see also GTECH Corp. v. Dep’t of Lottery, 737 So. 2d 615, 618–19 (Fla. 1st DCA 1999).
• Contrary to the governing statutes, rules or policies, or the solicitation specifications. The first question is whether the agency departed from the law or from its own solicitation. An agency is bound by the solicitation it wrote. In a request for proposals, the award must take into consideration the price and other criteria set forth in the request; in an invitation to negotiate, the agency must evaluate replies against all evaluation criteria set forth in the invitation (section 287.057(1)(b) and (c), Florida Statutes).
• Clearly erroneous. Florida tribunals borrow the federal definition: a finding is clearly erroneous when, although there is evidence to support it, the reviewer is left, on the entire evidence, with the definite and firm conviction that a mistake has been committed. United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948). Administrative law judges apply that standard to an agency’s intended award. See, e.g., A.D. Morgan Corp. v. Sarasota Cnty. Sch. Bd., No. 15-2362BID (Fla. DOAH Sept. 17, 2015) (Recommended Order).
• Contrary to competition. This element carries the purposes of competitive bidding, described at the top of this page, into the hearing. Administrative law judges apply it to agency action that (a) creates the appearance of and opportunity for favoritism; (b) erodes public confidence that contracts are awarded equitably and economically; (c) causes the procurement process to be genuinely unfair or unreasonably exclusive; or (d) is unethical, dishonest, illegal, or fraudulent. A.D. Morgan, No. 15-2362BID, ¶ 71.
• Arbitrary or capricious. “A capricious action is one which is taken without thought or reason or irrationally. An arbitrary decision is one not supported by facts or logic, or despotic.” Agrico Chem. Co. v. Dep’t of Env’t Regul., 365 So. 2d 759, 763 (Fla. 1st DCA 1978). If a decision is justifiable under any analysis a reasonable person would use to reach a decision of similar importance, “it would seem that the decision is neither arbitrary nor capricious.” Dravo Basic Materials Co. v. Dep’t of Transp., 602 So. 2d 632, 635 n.3 (Fla. 2d DCA 1992).

Showing that the agency made a mistake is therefore only part of the case. The protester must show that the agency departed from a statute, a rule or policy, or the solicitation, and that the departure was clearly erroneous, contrary to competition, arbitrary, or capricious. The judge does not re-score the responses or second-guess the evaluators merely because reasonable and well-informed people might have reached a different result. Sci. Games, Inc. v. Dittler Bros., 586 So. 2d 1128, 1131 (Fla. 1st DCA 1991); A.D. Morgan, No. 15-2362BID.

The narrower test for a decision to reject all bids, proposals, or replies began with the Florida Supreme Court, which held that in reviewing that kind of decision the hearing officer’s “sole responsibility is to ascertain whether the agency acted fraudulently, arbitrarily, illegally, or dishonestly.” Dep’t of Transp. v. Groves-Watkins Constructors, 530 So. 2d 912, 914 (Fla. 1988). The Legislature later wrote that test into section 120.57(3)(f).

A vendor cannot repair its response during the protest. In an invitation to bid or a request for proposals, submissions made after the bid or proposal opening that amend or supplement it are not considered. In an invitation to negotiate, the same is true of submissions made after the agency announces its intent to award, rejects all replies, or withdraws the solicitation.

What Causes an Intended Award to Be Overturned

Every protest turns on its own facts, but challenges to an intended award usually rest on a few recurring grounds:

• The winning response was not responsive. A bid, proposal, or reply must conform in all material respects to the solicitation (section 287.012(26) and (27), Florida Statutes), and an agency cannot accept a response with a material deviation. In one leading case, a city accepted a low bid that did not meet the specifications and let the bidder amend it afterward; the court reversed the award, holding that the city’s only choices were to award the contract to the next lowest bidder who met the specifications or to reject all bids and readvertise. Harry Pepper, 352 So. 2d at 1192–93. The Infinity Software protest described on our Attorney Information page was won on this ground. Our page on ITB, RFP, and ITN explains how a material deviation differs from a minor irregularity.
• The agency did not evaluate by its own criteria. Scoring responses against criteria the solicitation does not state, disregarding a stated criterion or its weight, or calculating scores in a way the solicitation does not describe departs from the solicitation and from section 287.057(1). A city’s attempted award based on scoring categories that were “neither included in the bid documents nor clearly defined” was held arbitrary and capricious, and the court upheld an order requiring the contract to go to the low bidder. City of Sweetwater v. Solo Constr. Corp., 823 So. 2d 798, 800–03 (Fla. 3d DCA 2002).
• The selected vendor is not responsible. A responsible vendor has the capability in all respects to fully perform the contract requirements and the integrity and reliability that will assure good faith performance (section 287.012(25)). An award to a vendor that does not meet that definition, or that fails the responsibility requirements the solicitation sets, is contrary to the statute.
• The process favored one vendor. Where a county was alleged to have asked one proposer, but not the other, to modify its costs, and to have accepted terms the request for proposals did not contemplate, the court held that the allegations stated a claim of impermissible favoritism and sent the case back to be decided on its merits. A public body, the court added, may not write the competitive requirement out of a procurement by giving itself overly broad discretion. Emerald Corr. Mgmt. v. Bay Cnty. Bd. of Cnty. Comm’rs, 955 So. 2d 647, 649–54 (Fla. 1st DCA 2007). An evaluator with a conflict of interest, or information given to one vendor and not the others, raises the same concern, which is what the “contrary to competition” standard is meant to reach.

When the protester carries its burden, the administrative law judge recommends that the intended award be rescinded. Depending on the facts, the recommendation may be to award the contract to the protester, to evaluate the responses again, or to reject all responses and begin again. The agency then enters its final order, which either side may appeal.

Step 7: Exceptions, Final Order, and Appeal

After the recommended order, each party has 10 days to file written exceptions. The agency must enter its final order within 30 days after the recommended order. A party adversely affected by the final order may seek review in a District Court of Appeal by filing a notice of appeal within 30 days after the order is rendered (section 120.68, Florida Statutes).

The Deadlines at a Glance

• Notice of protest: 72 hours after the decision or intended decision is posted, not counting weekends and state holidays
• Protest of a solicitation’s terms: notice within 72 hours after the solicitation is posted
• Formal written protest and bond: 10 days after the notice of protest is filed
• Opportunity to resolve by agreement: 7 days after the agency receives the formal protest, not counting weekends and state holidays
• Hearing begins: within 30 days after DOAH receives the formal protest
• Recommended order: within 30 days after the hearing or the transcript, whichever is later
• Exceptions: 10 days after the recommended order
• Final order: within 30 days after the recommended order

Read the Solicitation First

The Uniform Rules of Procedure add filing details in chapter 28-110, Florida Administrative Code, and each solicitation states where and how a protest must be filed. Those instructions control the mechanics, and they are the first thing we read.

Talk to Us Before the Deadline

If you are considering a protest, or another vendor has protested an award to you, reach us at 850-567-8445 or Info@woodringlawfirm.com, or through the form on this page.