ITB, RFP, and ITN: Florida’s Three Solicitation Methods

Florida state agencies must generally use a competitive solicitation to buy commodities or contractual services that cost more than $35,000, the CATEGORY TWO threshold (sections 287.017 and 287.057(1), Florida Statutes). The law gives them three ways to do it. The method the agency picks determines how the winner is chosen, how much room the agency has to negotiate, and what a disappointed vendor can protest.

For help with a bid, a proposal, a reply, or a protest, telephone 850-567-8445 or send us the form on this page.

Invitation to Bid (ITB)

An agency uses an invitation to bid when it can specifically define the scope of work or the commodity it needs. Price decides: the contract goes to the responsible and responsive vendor that submits the lowest responsive bid. ITB protests therefore tend to turn on two questions. Did the low bid actually conform to the specifications? And is the low bidder a responsible vendor?

Request for Proposals (RFP)

An agency uses a request for proposals when it can define what the purchase is for and identify the deliverables it needs, but an invitation to bid is not practicable; it must first say why in writing. Proposals are evaluated against criteria published in the RFP, with price as one of them, and the contract goes to the responsible and responsive vendor whose proposal is determined in writing to be the most advantageous to the state. RFP protests often focus on the evaluation: whether the evaluators followed the published criteria, whether the scores were calculated correctly, and whether the winning proposal met the mandatory requirements.

Invitation to Negotiate (ITN)

The invitation to negotiate is the most flexible of the three. An agency uses it to determine the best method for achieving a specific goal or solving a particular problem, and to identify one or more responsive vendors with which it may negotiate to receive the best value. The agency must document in writing why an ITB or an RFP is not practicable. The ITN must describe the questions being explored, the facts being sought, and the specific goals or problems behind the solicitation. The agency evaluates the replies, establishes a competitive range of replies reasonably susceptible of award, selects one or more vendors in that range to negotiate with, and awards the contract to the responsible and responsive vendor that will provide the best value to the state.

For larger contracts the statute adds safeguards: a negotiation team of at least three people for contracts above the CATEGORY FOUR threshold of $195,000, and at least one certified contract negotiator among those conducting negotiations when the contract exceeds $1 million in any fiscal year (section 287.057(17)).

The initial proposed statutory language for the ITN was drafted by Mr. Woodring during his service in the Governor’s legal office.

Why an ITN Can Have More Than One Protest Deadline

Because an ITN proceeds in stages, it can have more than one point of entry for a protest: the posting of the ITN itself, a posted decision about which vendors will be invited to negotiate, and the notice of intended award. Each posted decision that carries protest language starts its own 72-hour period, and an objection that belongs to an earlier stage may be lost if it is saved for the end. Whether another vendor’s reply was responsive, for example, may have to be challenged when the agency announces whom it will negotiate with, not when it announces the winner.

Purchases Made Without Competition

Not every purchase is competed. The statute allows emergency purchases when the agency head determines in writing that an immediate danger to the public health, safety, or welfare, or other substantial loss to the state, requires emergency action; purchases from state term contracts and from contracts competitively procured by another agency; and single-source purchases (section 287.057(3)). Before a single-source purchase, the agency must post a description of what it seeks for at least 15 business days and then give notice of its intended decision in the manner section 120.57(3) provides. A vendor that believes it could supply what the agency plans to buy from a single source should watch those postings closely.

Responsive and Responsible

Two defined terms appear in almost every protest. A responsive bid, proposal, or reply is one submitted by a responsive and responsible vendor that conforms in all material respects to the solicitation. A responsible vendor is one that 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, Florida Statutes). Because the test is whether a response conforms in all material respects, many protests are fought over whether a particular defect was material.

Florida courts draw the line between material and immaterial defects this way: although a bid containing a material variance is unacceptable, not every deviation from the solicitation is material, and a deviation is material only if it gives the bidder a substantial advantage over the other bidders and thereby restricts or stifles competition. Tropabest Foods, Inc. v. Dep’t of Gen. Servs., 493 So. 2d 50, 52 (Fla. 1st DCA 1986); Robinson Elec. Co. v. Dade Cnty., 417 So. 2d 1032, 1034 (Fla. 3d DCA 1982). Another formulation asks whether the variation affects the amount of the bid by giving the bidder an advantage or benefit not enjoyed by the other bidders. Harry Pepper & Assocs., Inc. v. City of Cape Coral, 352 So. 2d 1190, 1192–93 (Fla. 2d DCA 1977).

A deviation that is not material is often called a minor irregularity, and an agency may waive it. Until July 2024 the Department of Management Services’ purchasing rule (rule 60A-1.002, Florida Administrative Code) defined the term; it no longer does. Tropabest quoted the definition in an earlier state purchasing rule: a variation that does not affect the price of the bid, or give the bidder an advantage or benefit not enjoyed by other bidders, or adversely affect the interests of the agency. Tropabest, 493 So. 2d at 52. Many solicitations define the term in similar words, and some agencies have rules of their own. Whether a particular defect is material is decided case by case, and it is often the central question in an ITB protest.

Universities, School Districts, and Local Governments

These three methods are defined for state agencies. State universities and colleges are not “agencies” under chapter 287 (section 287.012(1)), and school districts, counties, and cities purchase under their own rules, which often use the same vocabulary. See our page on county, city, school district, and university bid protests.

Talk to Us About a Solicitation

Whatever the method, the best time to involve counsel is before the response is submitted. Our telephone is 850-567-8445 and our email is Info@woodringlawfirm.com; the form on this page reaches us too.