Common Questions About Florida Bid Protests

Short answers to questions vendors often ask. Unless an answer says otherwise, they describe protests of Florida state agency decisions under section 120.57(3), Florida Statutes. They are general information, not advice about a particular procurement.

For an answer about your own procurement, telephone 850-567-8445 or send us the form on this page.

How is the 72-hour protest period counted?

It starts when the agency posts its decision or intended decision electronically, and it runs for 72 hours, not counting Saturdays, Sundays, and state holidays. For a challenge to the solicitation’s own terms, it starts when the solicitation is posted. The notice of protest must be in writing and must be filed with the agency before the period ends.

What is the difference between the notice of protest and the formal written protest?

The notice is a short written statement that you protest the decision; it preserves your rights. The formal written protest is due within 10 days after the notice is filed and must state with particularity the facts and law on which the protest is based. Both are required, and missing either one waives the protest.

How much is the protest bond?

For a protest of a state agency contract, 1 percent of the estimated contract amount, posted when the formal written protest is filed (section 287.042(2)(c), Florida Statutes). The agency must tell you the estimated contract amount within 72 hours after you file the notice of protest, not counting weekends and state holidays. A cashier’s check, official bank check, or money order may be accepted instead of a bond. Universities, school districts, and local governments have their own bond rules.

What happens to the bond when the protest is over?

The bond secures the costs and charges that may be adjudged against the protester. If the agency prevails after the hearing and any appeal, it recovers its costs and charges, not including attorney’s fees, and the bond is returned once they are paid. If the protester prevails, it recovers its costs and charges from the agency, again not including attorney’s fees.

Does filing a protest stop the contract from being signed?

Usually. When 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, unless the agency head finds in writing that it must continue to avoid an immediate and serious danger to the public health, safety, or welfare.

Who can file a protest?

Section 120.57(3) gives the right to any person who is adversely affected by the agency’s decision or intended decision. Whether a particular vendor qualifies depends on the solicitation, the decision being protested, and the vendor’s position in the competition, and standing is often disputed. It is one of the first things we evaluate.

We won the award and another vendor has protested. What should we do?

Get involved. The protest is a challenge to your contract, and the agency’s interests are not identical to yours. The vendor named in the intended award ordinarily may intervene in the proceeding to defend the award, present its own evidence, and answer attacks on its response. We represent intervenors as well as protesters.

How long does a bid protest take?

By statute, weeks and not years. The hearing begins within 30 days after the Division of Administrative Hearings receives the formal written protest. The recommended order follows within 30 days after the hearing or the transcript. Exceptions are due 10 days later, and the final order is due within 30 days after the recommended order. The parties can agree to waive these periods, and an appeal adds time.

Can we fix a mistake in our bid or proposal after it is opened?

Not through 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 rule applies to submissions made after the agency announces its intent to award, rejects all replies, or withdraws the solicitation.

The agency rejected all bids. Can that be protested?

Yes, but the test is demanding. The protester must show that the decision to reject all bids, proposals, or replies was illegal, arbitrary, dishonest, or fraudulent.

Why does Florida allow bid protests at all?

Because competition is the point of public purchasing. The Legislature has found that fair and open competition reduces the appearance and opportunity for favoritism and inspires public confidence that contracts are awarded equitably and economically (section 287.001, Florida Statutes), and the Florida Supreme Court has long held that bidding laws exist to secure fair competition upon equal terms to all bidders and to close all avenues to favoritism and fraud. Wester v. Belote, 103 Fla. 976, 138 So. 721, 723–24 (1931). A protest is how a vendor enforces those requirements in a particular procurement, before the contract is signed.

What does a protester have to prove to overturn an intended award?

Two things. First, that the agency’s proposed action is contrary to its governing statutes, its rules or policies, or the solicitation specifications; second, that the action was clearly erroneous, contrary to competition, arbitrary, or capricious (section 120.57(3)(f), Florida Statutes). The protester has the burden of proof. Our page on the bid protest process explains each term and the cases that define it.

What does “contrary to competition” mean?

The statute does not define the phrase. Administrative law judges apply it to agency action that creates the appearance of and opportunity for favoritism; that erodes public confidence that contracts are awarded equitably and economically; that causes the procurement process to be genuinely unfair or unreasonably exclusive; or that is unethical, dishonest, illegal, or fraudulent. A.D. Morgan Corp. v. Sarasota Cnty. Sch. Bd., No. 15-2362BID, ¶ 71 (Fla. DOAH Sept. 17, 2015) (Recommended Order).

What has to be shown to win a protest of the specifications?

The same statutory test applies: the protester must show that a term of the solicitation is contrary to a statute, rule, or policy, and that it is clearly erroneous, contrary to competition, arbitrary, or capricious. A specification so vague that vendors cannot prepare an accurate response, or so unreasonable that it cannot be met or can be met only at a cost that rules out competing, can meet that test; a specification is not invalid merely because another would be better or because it keeps one vendor out. Hadi v. Liberty Behav. Health Corp., 927 So. 2d 34, 39–40 (Fla. 1st DCA 2006). The notice of protest is due within 72 hours after the solicitation is posted, and objections held back until after the award are generally waived. Capeletti Bros., Inc. v. Dep’t of Transp., 499 So. 2d 855, 857 (Fla. 1st DCA 1986).

Is every defect in the winning bid enough to overturn the award?

No. Only a material deviation makes a response nonresponsive, and a deviation is material only if it gives the bidder a substantial advantage over the other bidders and thereby restricts or stifles competition; an immaterial one, often called a minor irregularity, may be waived by the agency. Tropabest Foods, Inc. v. Dep’t of Gen. Servs., 493 So. 2d 50, 52 (Fla. 1st DCA 1986).

Is a county, city, school district, or university protest handled the same way?

Not necessarily. Counties and cities follow their own procurement codes, with their own deadlines, bonds or fees, and decision-makers. School districts generally follow the state procedure. State universities follow Board of Governors Regulation 18.002. See our page on county, city, school district, and university bid protests.

Is it too late once the notice of intended award has been posted?

Not for a protest of the award, if the 72 hours has not run. But it is usually too late for arguments that belonged to an earlier stage, such as objections to the specifications. That is the main reason to involve counsel when the solicitation is released, or sooner.

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Our telephone is 850-567-8445, our email is Info@woodringlawfirm.com, and the form on this page comes to us as well.