Challenging Bid Specifications in a Florida Procurement

The right to challenge the solicitation itself is one of the most valuable rights in Florida procurement law, and one of the least used. If the terms, conditions, or specifications of an invitation to bid, request for proposals, or invitation to negotiate are unlawful, favor one vendor, or cannot be met as written, the time to say so is at the beginning.

The time to challenge a solicitation is measured in hours. To have us review one, telephone 850-567-8445 or write to us with the form on this page.

Why Specifications Can Be Challenged

Specifications decide who can compete, and on what terms. A requirement written around one product, an evaluation method that cannot be applied consistently, or a term that lets the agency choose a favorite after the responses are in can defeat the purposes of competitive procurement before the first response is submitted. Florida law recognizes fair and open competition as a basic tenet of public procurement (section 287.001, Florida Statutes).

The specifications protest exists so that problems of that kind are fixed at the start. In the words of the First District Court of Appeal, its purpose “is to allow an agency, in order to save expense to the bidders and to assure fair competition among them, to correct or clarify plans and specifications prior to accepting bids.” Capeletti Bros., Inc. v. Dep’t of Transp., 499 So. 2d 855, 857 (Fla. 1st DCA 1986).

The 72-Hour Rule for Specifications

A protest of the terms, conditions, and specifications of a state agency solicitation must be noticed in writing within 72 hours after the solicitation is posted, not counting Saturdays, Sundays, and state holidays. The statute names what belongs in this kind of protest: provisions governing the methods for ranking bids, proposals, or replies; awarding contracts; reserving rights of further negotiation; and modifying or amending any contract (section 120.57(3)(b), Florida Statutes). The formal written protest follows within 10 days after the notice.

Addenda matter too. When an agency posts an addendum that changes the solicitation, a vendor that objects to the change should treat the posting of the addendum as starting its own 72-hour period.

What Happens If You Wait

Failure to file the notice of protest, or the formal written protest, is a waiver of proceedings under chapter 120. A vendor that responds to a solicitation without protesting its terms should expect to be held to them. After the award is announced, it is generally too late to argue that the scoring method was unfair, that a requirement could not be met, or that the agency kept too much freedom to negotiate. Our blog post on a 2015 ITN ruling shows how many arguments one large vendor lost for this reason.

Florida courts enforce the waiver. A bidder that had the plans and specifications weeks before the bid opening, and did not protest them within the 72 hours, could not challenge them after the award. Capeletti, 499 So. 2d at 857. The same rule has been applied to a challenge to the scoring criteria, where the vendor had submitted a proposal under the published criteria without protesting them, Optiplan, Inc. v. Sch. Bd. of Broward Cnty., 710 So. 2d 569, 572–73 (Fla. 4th DCA 1998), and to a challenge to the cost provisions of a request for proposals raised only after the intended award, Consultech of Jacksonville, Inc. v. Dep’t of Health, 876 So. 2d 731, 734 (Fla. 1st DCA 2004).

Specifications Worth a Second Look

• Requirements written around one vendor’s product, staffing, or experience
• Mandatory requirements that cannot be met, or that conflict with one another
• Evaluation criteria and weights that are vague, or that do not fit the stated purpose of the purchase
• Terms that let the agency change the scope of work after responses are in
• Terms that conflict with chapter 287, Florida Statutes, or with the agency’s own rules
• Response deadlines too short to allow real competition

The Standard in a Specifications Protest

A protest of a solicitation’s terms is a competitive-procurement protest, so the statutory test is the one that governs a protest of an award (section 120.57(3)(f), Florida Statutes). Administrative law judges apply it in two steps: the protester must prove that, in drawing the specifications, the agency acted contrary to a governing statute, rule, or policy, and then that the misstep was clearly erroneous, arbitrary or capricious, or contrary to competition. Supply Chain Concepts v. Miami-Dade Cnty. Sch. Bd., No. 05-4571BID, ¶¶ 12–14 (Fla. DOAH Feb. 13, 2006) (Recommended Order). Our page on the bid protest process explains each of those terms.

The agency starts with real latitude to decide what it needs. The First District Court of Appeal has held that a challenge must be directed to specifications “so vague that bidders cannot formulate an accurate bid, or so unreasonable that they are either impossible to comply with or too expensive to do so and be competitive,” and that a specification is not arbitrary or capricious merely because it keeps a particular vendor from bidding. Hadi v. Liberty Behav. Health Corp., 927 So. 2d 34, 39–40 (Fla. 1st DCA 2006) (citing Advocacy Ctr. for Persons with Disabilities, Inc. v. Dep’t of Children & Family Servs., 721 So. 2d 753 (Fla. 1st DCA 1998)). A protester does not win by showing that a different specification would be better, or would suit its own product.

When a Specifications Protest Can Succeed

Each item on the list above can support a protest if it can be tied to that test. The recognized grounds include terms that:

• Conflict with the statute or a rule. For example, the statute requires a request for proposals to state the relative importance of price and the other evaluation criteria (section 287.057(1)(b), Florida Statutes).
• Are so vague that vendors cannot formulate an accurate bid or response. Hadi, 927 So. 2d at 39.
• Cannot be met, or can be met only at a cost that would make it impossible to compete. Hadi, 927 So. 2d at 39.
• Restrict competition without a reason grounded in the agency’s needs. A specification that describes what a product must do and accepts equivalents is not restrictive, but excluding an equivalent product while accepting others would be irrational, arbitrary, and contrary to competition. Supply Chain Concepts, No. 05-4571BID.
• Reserve unlimited discretion to the agency. A public body 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).

When a specifications protest succeeds, the usual result is that the agency amends the solicitation, or withdraws it and issues a new one, before any vendor has been chosen.

Questions, Clarifications, and the Protest Clock

Most solicitations include a written question-and-answer period, and the statute allows agencies to hold one before responses are due (section 287.057(2), Florida Statutes). Asking a question is often the right first step, and a good answer may cure the problem. But a pending question does not extend the 72 hours. A vendor that needs more than a clarification must file its notice of protest on time. And if the agency’s written answer changes the solicitation, or makes the problem worse, the answer may need to be challenged promptly as well.

Mind the Contact Restriction

Every state agency solicitation must tell respondents that they may not contact any employee or officer of the executive or legislative branch about the solicitation, from its release until the end of the 72-hour period after the notice of intended award is posted, except in writing to the procurement officer or as the solicitation documents provide. A violation may be grounds for rejecting a response (section 287.057(25), Florida Statutes). A complaint about the specifications belongs in the question process or in a protest, not in a call to someone at the agency.

Why Vendors Hesitate, and How Counsel Helps

Vendors are often reluctant to protest specifications because they do not want to antagonize the agency they hope to work for. That concern is real, and it is one reason to involve counsel early. There are usually several ways to raise a problem, from a carefully framed question to a protest, and choosing among them is a matter of strategy. We review solicitations for vendors as they are released, identify the terms that need attention inside the 72 hours, and help vendors prepare responses that meet every mandatory requirement.

Have a Solicitation Reviewed

To have a Florida solicitation reviewed before the protest period runs, telephone 850-567-8445, write to Info@woodringlawfirm.com, or send the form on this page.