Blueprint of a Bid Blueprint of a Bid ProtestProtest

……well, more of a thumbnail of a well, more of a thumbnail of a bid protest.bid protest.

About This Presentation:About This Presentation:► Not intended to be exhaustive coverage of aspects of Not intended to be exhaustive coverage of aspects of

a bid protest, rather, only a summary of those a bid protest, rather, only a summary of those statutes and rules that relate to bid protests filed in statutes and rules that relate to bid protests filed in Florida pursuant to section 120.57(3), Florida Florida pursuant to section 120.57(3), Florida Statutes.Statutes.

► Current text of the Florida Statutes can always be Current text of the Florida Statutes can always be reviewed at reviewed at http://www.flsenate.gov/Welcome/index.cfmhttp://www.flsenate.gov/Welcome/index.cfm (use (use menu on upper left to view or search Statutes & menu on upper left to view or search Statutes & Constitutions).Constitutions).

► Current text of the Florida Administrative Code can Current text of the Florida Administrative Code can always be reviewed at always be reviewed at http://fac.dos.state.fl.ushttp://fac.dos.state.fl.us . .

What we will be looking at…What we will be looking at…

► Section 120.57, Florida Section 120.57, Florida StatutesStatutes

► Chapter 287, Florida StatutesChapter 287, Florida Statutes► Chapter 119, Florida StatutesChapter 119, Florida Statutes► Chapter 28-106, Florida Chapter 28-106, Florida

Administrative Code Administrative Code

What will we be covering…What will we be covering…► A. IntroductionA. Introduction

► B. Filing of a Bid ProtestB. Filing of a Bid Protest Notice of ProtestNotice of Protest Formal Written ProtestFormal Written Protest Protest BondProtest Bond

► C. Proceedings at the Division of Administrative Hearings (DOAH)C. Proceedings at the Division of Administrative Hearings (DOAH) Sent by the Agency to DOAH Sent by the Agency to DOAH Discovery and Public Records RequestsDiscovery and Public Records Requests Proposed Recommended OrderProposed Recommended Order Final HearingFinal Hearing Recommended Order Recommended Order

► D. Final Order rendered by the AgencyD. Final Order rendered by the Agency

► E. Judicial ReviewE. Judicial Review

Initiating a Bid ProtestInitiating a Bid Protest

How is it done?How is it done?

Notice of ProtestNotice of ProtestSection 120.57(3), Florida Section 120.57(3), Florida

StatutesStatutes► (3)  (b)  (3)  (b)  Any person who is adversely affected by the agency Any person who is adversely affected by the agency

decision or intended decision shall file with the agency a decision or intended decision shall file with the agency a notice of protest in writing within 72 hours after the posting of notice of protest in writing within 72 hours after the posting of the notice of decision or intended decision.the notice of decision or intended decision. With respect to a With respect to a protest of the terms, conditions, and specifications contained protest of the terms, conditions, and specifications contained in a solicitation, including any provisions governing the in a solicitation, including any provisions governing the methods for ranking bids, proposals, or replies, awarding methods for ranking bids, proposals, or replies, awarding contracts, reserving rights of further negotiation, or modifying contracts, reserving rights of further negotiation, or modifying or amending any contract, the notice of protest shall be filed or amending any contract, the notice of protest shall be filed in writing within 72 hours after the posting of the solicitation. in writing within 72 hours after the posting of the solicitation. The formal written protest shall be filed within 10 days after The formal written protest shall be filed within 10 days after the date the notice of protest is filed. Failure to file a notice of the date the notice of protest is filed. Failure to file a notice of protest or failure to file a formal written protest shall protest or failure to file a formal written protest shall constitute a waiver of proceedings under this chapter. The constitute a waiver of proceedings under this chapter. The formal written protest shall state with particularity the facts formal written protest shall state with particularity the facts and law upon which the protest is based. Saturdays, Sundays, and law upon which the protest is based. Saturdays, Sundays, and state holidays shall be excluded in the computation of the and state holidays shall be excluded in the computation of the 72-hour time periods provided by this paragraph. 72-hour time periods provided by this paragraph.

Section 120.57(3), Florida Section 120.57(3), Florida StatutesStatutes

►(3)  (b)  Any person who is (3)  (b)  Any person who is adversely adversely affectedaffected by the agency decision or by the agency decision or intended decision shall intended decision shall filefile with the with the agency agency a notice of protest in writing a notice of protest in writing within 72 hours after the posting of the within 72 hours after the posting of the notice of decision or intended decisionnotice of decision or intended decision. . [ ][ ]

So you have a Notice of Protest. So you have a Notice of Protest.

Now what?Now what?

Section 120.57(3), Florida Section 120.57(3), Florida StatutesStatutes

► (3)  (b)  Any person who is adversely affected by the agency (3)  (b)  Any person who is adversely affected by the agency decision or intended decision shall file with the agency a decision or intended decision shall file with the agency a notice of protest in writing within 72 hours after the posting of notice of protest in writing within 72 hours after the posting of the notice of decision or intended decision. With respect to a the notice of decision or intended decision. With respect to a protest of the terms, conditions, and specifications contained protest of the terms, conditions, and specifications contained in a solicitation, including any provisions governing the in a solicitation, including any provisions governing the methods for ranking bids, proposals, or replies, awarding methods for ranking bids, proposals, or replies, awarding contracts, reserving rights of further negotiation, or modifying contracts, reserving rights of further negotiation, or modifying or amending any contract, the notice of protest shall be filed or amending any contract, the notice of protest shall be filed in writing within 72 hours after the posting of the solicitation. in writing within 72 hours after the posting of the solicitation. The formal written protest shall be filed within 10 days after The formal written protest shall be filed within 10 days after the date the notice of protest is filed. Failure to file a notice of the date the notice of protest is filed. Failure to file a notice of protest or failure to file a formal written protest shall protest or failure to file a formal written protest shall constitute a waiver of proceedings under this chapter.constitute a waiver of proceedings under this chapter. The The formal written protest shall state with particularity the facts formal written protest shall state with particularity the facts and law upon which the protest is based. Saturdays, Sundays, and law upon which the protest is based. Saturdays, Sundays, and state holidays shall be excluded in the computation of the and state holidays shall be excluded in the computation of the 72-hour time periods provided by this paragraph. 72-hour time periods provided by this paragraph.

Section 120.57(3), Florida Section 120.57(3), Florida StatutesStatutes

►The formal written protest shall be The formal written protest shall be filed within 10 daysfiled within 10 days after the date the after the date the notice of protest is filed. notice of protest is filed. FailureFailure to file to file a notice of protest or failure to file a a notice of protest or failure to file a formal written protest shall constitute formal written protest shall constitute a a waiverwaiver of proceedings under this of proceedings under this chapter.chapter.

What about the Protest What about the Protest Bond?Bond?

Protest Bond RequirementProtest Bond RequirementSection 287.042(2)(c), Florida StatutesSection 287.042(2)(c), Florida Statutes

► (2)(c)  Any person who files an action protesting a decision or intended (2)(c)  Any person who files an action protesting a decision or intended decision pertaining to contracts administered by the department, a water decision pertaining to contracts administered by the department, a water management district, or an agency pursuant to s. management district, or an agency pursuant to s. 120.57120.57(3)(b) shall post with (3)(b) shall post with the department, the water management district, or the agency at the time of the department, the water management district, or the agency at the time of filing the formal written protest a bond payable to the department, the water filing the formal written protest a bond payable to the department, the water management district, or agency in an amount equal to 1 percent of the management district, or agency in an amount equal to 1 percent of the estimated contract amount. For protests of decisions or intended decisions estimated contract amount. For protests of decisions or intended decisions pertaining to exceptional purchases, the bond shall be in an amount equal to pertaining to exceptional purchases, the bond shall be in an amount equal to 1 percent of the estimated contract amount for the exceptional purchase. The 1 percent of the estimated contract amount for the exceptional purchase. The estimated contract amount shall be based upon the contract price submitted estimated contract amount shall be based upon the contract price submitted by the protestor or, if no contract price was submitted, the department, water by the protestor or, if no contract price was submitted, the department, water management district, or agency shall estimate the contract amount based on management district, or agency shall estimate the contract amount based on factors including, but not limited to, the price of previous or existing contracts factors including, but not limited to, the price of previous or existing contracts for similar commodities or contractual services, the amount appropriated by for similar commodities or contractual services, the amount appropriated by the Legislature for the contract, or the fair market value of similar the Legislature for the contract, or the fair market value of similar commodities or contractual services. The agency shall provide the estimated commodities or contractual services. The agency shall provide the estimated contract amount to the vendor within 72 hours, excluding Saturdays, Sundays, contract amount to the vendor within 72 hours, excluding Saturdays, Sundays, and state holidays, after the filing of the notice of protest by the vendor. The and state holidays, after the filing of the notice of protest by the vendor. The estimated contract amount is not subject to protest pursuant to s. estimated contract amount is not subject to protest pursuant to s. 120.57120.57(3). (3). The bond shall be conditioned upon the payment of all costs and charges that The bond shall be conditioned upon the payment of all costs and charges that are adjudged against the protestor in the administrative hearing in which the are adjudged against the protestor in the administrative hearing in which the action is brought and in any subsequent appellate court proceeding. In lieu of action is brought and in any subsequent appellate court proceeding. In lieu of a bond, the department, the water management district, or agency may, in a bond, the department, the water management district, or agency may, in either case, accept a cashier's check, official bank check, or money order in either case, accept a cashier's check, official bank check, or money order in the amount of the bond. [ ]the amount of the bond. [ ]

Section 287.042(2)(c), Florida Section 287.042(2)(c), Florida StatutesStatutes

► (2)(c)  Any person who files an action (2)(c)  Any person who files an action protesting a decision or intended decision protesting a decision or intended decision pertaining to contracts administered by the pertaining to contracts administered by the department, a water management district, or department, a water management district, or an agency pursuant to s. an agency pursuant to s. 120.57120.57(3)(b) (3)(b) shall shall post with the departmentpost with the department, the water , the water management district, or the agency management district, or the agency at the at the time of filing the formal written protest a time of filing the formal written protest a bondbond payable to the department, the water payable to the department, the water management district, or agency in an amount management district, or agency in an amount equal to 1 percent of the estimated contract equal to 1 percent of the estimated contract amountamount. [ ]. [ ]

Doesn’t have to be a BondDoesn’t have to be a Bond Section 287.042(2)(c) Section 287.042(2)(c)

► [ ]In lieu of a bond, the department, the[ ]In lieu of a bond, the department, the

water management district, or agency water management district, or agency may, in either case, accept a cashier's may, in either case, accept a cashier's check, official bank check, or money order check, official bank check, or money order in the amount of the bond. [ ]in the amount of the bond. [ ]

Section 287.042(2)(c), Florida Section 287.042(2)(c), Florida StatutesStatutes

► [ ] The estimated contract amount shall be [ ] The estimated contract amount shall be based upon the contract price submitted based upon the contract price submitted by the by the protestor protestor oror, if no contract price was submitted, , if no contract price was submitted, the department, water management district, or the department, water management district, or agency shall agency shall estimate the contract amountestimate the contract amount based on based on factorsfactors including, but not limited to, including, but not limited to, the price of previous or existing contracts for the price of previous or existing contracts for similar commodities or contractual services, similar commodities or contractual services, the amount appropriated by the Legislature for the amount appropriated by the Legislature for the contract, or the fair market value of similar the contract, or the fair market value of similar commodities or contractual services. [ ] commodities or contractual services. [ ]

Section 287.042(2)(c), Florida Section 287.042(2)(c), Florida StatutesStatutes

► [ ]The [ ]The agency shall provideagency shall provide the estimated the estimated contract amount to the vendor contract amount to the vendor within 72 within 72 hourshours, excluding Saturdays, Sundays, and , excluding Saturdays, Sundays, and state holidays, after the filing of the notice state holidays, after the filing of the notice of protest by the vendor. [ ]of protest by the vendor. [ ]

Protest Bond Used to Cover Protest Bond Used to Cover Costs if Protestor LoosesCosts if Protestor Looses

►[ ] The bond shall be conditioned [ ] The bond shall be conditioned upon the payment of all costs and upon the payment of all costs and charges that are adjudged against charges that are adjudged against the protestor in the administrative the protestor in the administrative hearing in which the action is hearing in which the action is brought and in any subsequent brought and in any subsequent appellate court proceeding. [ ] appellate court proceeding. [ ]

So you’ve got a Written Protest So you’ve got a Written Protest and You’ve got the Protest Bond, and You’ve got the Protest Bond,

now what’s the next step?now what’s the next step?

Stop the SolicitationStop the Solicitation

Section 120.57(3)(c), Florida Section 120.57(3)(c), Florida StatutesStatutes

► (c)  Upon receipt of the formal written protest (c)  Upon receipt of the formal written protest that has been timely filed, the agency that has been timely filed, the agency shall shall stopstop the solicitation or contract award process the solicitation or contract award process until the subject of the protest is resolved by until the subject of the protest is resolved by final agency action, final agency action, unlessunless the agency head the agency head sets forth in writing particular facts and sets forth in writing particular facts and circumstances which require the continuance circumstances which require the continuance of the solicitation or contract award process of the solicitation or contract award process without delay in order to avoid an immediate without delay in order to avoid an immediate and serious danger to the public health, safety, and serious danger to the public health, safety, or welfare. or welfare.

Try to work it outTry to work it out

Evaluate and Evaluate and EducateEducate

Section 120.057(3)(d)Section 120.057(3)(d)

► (d)1.  The agency shall provide an (d)1.  The agency shall provide an opportunityopportunity to resolve the to resolve the protest by mutual agreement between the parties protest by mutual agreement between the parties within 7 within 7 daysdays, excluding Saturdays, Sundays, and state holidays, after , excluding Saturdays, Sundays, and state holidays, after receipt of a formal written protest. receipt of a formal written protest.

► 2.  If the subject of a protest is 2.  If the subject of a protest is not resolvednot resolved by mutual by mutual agreement within 7 days, excluding Saturdays, Sundays, and agreement within 7 days, excluding Saturdays, Sundays, and state holidays, after receipt of the formal written protest, and state holidays, after receipt of the formal written protest, and if there is if there is no disputed issue of material factno disputed issue of material fact, an , an informal informal proceedingproceeding shall be conducted pursuant to subsection (2) and shall be conducted pursuant to subsection (2) and applicable agency rules before a person whose qualifications applicable agency rules before a person whose qualifications have been prescribed by rules of the agency. have been prescribed by rules of the agency.

► 3.  If the subject of a protest is 3.  If the subject of a protest is not resolvednot resolved by mutual by mutual agreement within 7 days, excluding Saturdays, Sundays, and agreement within 7 days, excluding Saturdays, Sundays, and state holidays, after receipt of the formal written protest, and state holidays, after receipt of the formal written protest, and if there is a if there is a disputed issue of material factdisputed issue of material fact, the agency shall , the agency shall refer the protest to the divisionrefer the protest to the division for proceedings under for proceedings under subsection (1). subsection (1).

DOAH or Informal ProceedingDOAH or Informal Proceeding

► 1. If no material 1. If no material facts – Informal facts – Informal ProceedingProceeding - Handled by Agency - Handled by Agency

Hearing OfficerHearing Officer

► 2. If material facts – 2. If material facts – Formal ProceedingFormal Proceeding - Sent to DOAH- Sent to DOAH

Rules Regarding HearingsRules Regarding Hearings

►Hearings Involving Disputed Issues of Hearings Involving Disputed Issues of Material FactMaterial Fact Chapter 28-106, Part I, Florida Chapter 28-106, Part I, Florida

Administrative CodeAdministrative Code

►Proceedings and Hearings Not Proceedings and Hearings Not Involving Disputed Issues of Material Involving Disputed Issues of Material FactFact Chapter 28-106, Part II, Florida Chapter 28-106, Part II, Florida

Administrative CodeAdministrative Code

Focus on DOAH ProceedingsFocus on DOAH Proceedings

Once Received by the Once Received by the DivisionDivision

► Initial Order Issued by assigned DOAH Initial Order Issued by assigned DOAH JudgeJudge

► Provides Final Hearing Date and Provides Final Hearing Date and Expedited Discovery Schedule.Expedited Discovery Schedule.

DiscoveryDiscovery

► InterrogatoriesInterrogatories Questions on paperQuestions on paper

► Requests for ProductionRequests for Production Documents and thingsDocuments and things

► Requests for AdmissionsRequests for Admissions Yes or NoYes or No

► DepositionsDepositions Questions in personQuestions in person

……under oathunder oath

Public Records RequestsPublic Records RequestsChapter 119, Florida StatutesChapter 119, Florida Statutes

► Are used in addition to Are used in addition to discovery to get records discovery to get records from the agency.from the agency.

Section 119.011, Florida Section 119.011, Florida StatutesStatutes

► (11)  "Public records" means all documents, papers, (11)  "Public records" means all documents, papers, letters, maps, books, tapes, photographs, films, sound letters, maps, books, tapes, photographs, films, sound recordings, data processing software, or other material, recordings, data processing software, or other material, regardless of the physical form, characteristics, or regardless of the physical form, characteristics, or means of transmission, made or received pursuant to means of transmission, made or received pursuant to law or ordinance or in connection with the transaction law or ordinance or in connection with the transaction of official business by any agency. of official business by any agency.

PleadingsPleadings

►During discovery, motions and During discovery, motions and pleadings (arguments on paper), pleadings (arguments on paper), related to discovery or related to other related to discovery or related to other matters concerning the litigation, may matters concerning the litigation, may be filed and hearings may take place be filed and hearings may take place to resolve matters argued therein. to resolve matters argued therein.

Examples:Examples:

► Petitions to IntervenePetitions to Intervene

► MotionsMotions DismissDismiss Protective orderProtective order Summary recommended Summary recommended

order order More timeMore time

► Hearings on Petitions and Hearings on Petitions and Motions Motions

Final Hearing - Like a TrialFinal Hearing - Like a Trial

- Opening argumentsOpening arguments

- Witnesses are calledWitnesses are called

- Direct and cross Direct and cross examinationexamination

- Documents are offered Documents are offered into evidenceinto evidence

- Closing argumentsClosing arguments

Proposed Recommended Proposed Recommended OrderOrder

► A draft order the court may use.A draft order the court may use.

► Based upon evidence presented throughout Based upon evidence presented throughout the case and offered at Final Hearingthe case and offered at Final Hearing

► Applies the relevant law to the factsApplies the relevant law to the facts

► Reaches a conclusionReaches a conclusion

► Last chance to make your point!Last chance to make your point!

Final StagesFinal Stages

►DOAH issues Recommended OrderDOAH issues Recommended Order► Case sent back to Agency to issue Final Case sent back to Agency to issue Final

OrderOrder► Loosing party may appeal Agency Final Loosing party may appeal Agency Final

Order.Order.

Appeal to the CourtAppeal to the Court

► Loosing party would Loosing party would appeal the Final appeal the Final Order to the Order to the Appellate CourtAppellate Court

DisclaimerDisclaimer

- This is merely a brief - This is merely a brief summary of portions of summary of portions of chapter 120, 287 and 119, chapter 120, 287 and 119, Florida Statutes, and the Florida Statutes, and the referenced Administrative referenced Administrative Rules. and is not, in any Rules. and is not, in any way, to be used in substitute way, to be used in substitute for reviewing these statutes for reviewing these statutes or rules.or rules.

- Specific Questions should - Specific Questions should be first directed to either be first directed to either your Purchasing Director or your Purchasing Director or General Counsel’s OfficeGeneral Counsel’s Office