Florida Construction Law Authority : Florida Construction Lawyer & Attorney: Becker & Poliakoff Law Firm: Construction Law

In public procurements, the specifications contained in the bid documents such as an Invitation for Bid or Request for Proposals, along with local codes or statutes, generally govern the process.  They are the instructions to the bidders and will help shape the responses.  Sometimes the specifications are not clear, or lead to questions from the potential bidders. Some procurements may allow such vendors to pose questions to the owner agency to clarify any misunderstandings.

Many advertised procurements will specify who to send the questions to.  It is important to follow the instructions so as not to violate a cone of silence, and to ensure that a response is provided.  It is also important to submit the questions within the time period provided.  Questions posed after the imposed deadline may not be responded to.  Responses to vendors' questions are often posted as addendums to the specifications, and become part of the procurement guidelines.  Questions can range from just about anything covered, or not covered in the specifications, including qualification issues, measurements or materials issues, or related information.

As always, be sure to check the specifications for instructions about asking questions about the project.

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So it is time to sign your price proposal and get your bid in to a public agency. Have you considered all costs to perform the work, and those that are in addition to the cost of labor and materials?

The public agency's terms and conditions should spell out all of the costs that are to be included in the price proposal. Such costs may go well beyond the cost of the work itself. For example, it may be that the cost of bonds, additional insurance coverage, permits and inspections are to be included in the cost of the work, and therefore the bid amount. It is also important to include all required elements as part of your pricing to make sure that your bid is responsive.

Accordingly, it is imperative that bidders carefully consider all requirements that have a cost when estimating and calculating a bid. Generally, a public agency may hold a bidder responsible for its bid, even when the bidder made a mistake in its pricing. In the event that the bidding terms and conditions are not clear with respect to who is responsible for any additional costs, then bidders should consider seeking a clarification or an addendum from the public agency to avoid any uncertainty prior to submission of the bid.

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So it is time to sign your price proposal and get your bid in to a public agency. Have you considered all costs to perform the work, and those that are in addition to the cost of labor and materials?

The public agency's terms and conditions should spell out all of the costs that are to be included in the price proposal. Such costs may go well beyond the cost of the work itself. For example, it may be that the cost of bonds, additional insurance coverage, permits and inspections are to be included in the cost of the work, and therefore the bid amount. It is also important to include all required elements as part of your pricing to make sure that your bid is responsive.

Accordingly, it is imperative that bidders carefully consider all requirements that have a cost when estimating and calculating a bid. Generally, a public agency may hold a bidder responsible for its bid, even when the bidder made a mistake in its pricing. In the event that the bidding terms and conditions are not clear with respect to who is responsible for any additional costs, then bidders should consider seeking a clarification or an addendum from the public agency to avoid any uncertainty prior to submission of the bid.

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In my last post, I summarized the first half of my interview with Jane Garvey, the North American chair of Meridiam Infrastructure, one of the country’s leaders in public/private partnerships (“P3”). Here is the rest of the information she provided in that interview.

I asked her about the effect on P3 momentum caused by the Legislature’s failure to pass the P3 legislation during the last session. Most P3 participants, especially investors, would tell you comprehensive P3 legislation is critical to attract investments in P3 jobs because they create or advance the perception of stability in the P3 process. Many public owners are unsure of how to embark on P3 projects and, in the absence of comprehensive legislation to guide them, they tend to wallow around a bit, adding time, cost and anxiety to the process. Legislation tends to coalesce and educate public entities, prompting them to develop stable structure within their agencies to better anticipate and handle P3 opportunities. The failure of the Florida Legislature to pass P3 legislation during this past session disappoints, but Jane doesn’t believe it will stifle interest in Florida. Her perception is that the political and private will in support of P3 projects, already reflected in the substantial increase in the number of P3 jobs, will overcome the deficiency created by the lack of legislation. 

My last inquiry of Jane (we’ll be scheduling a follow-up interview shortly) involved her expectations about the use of P3’s in Florida in the near future. Jane pointed out that Florida was always among the national leaders in P3 on transportation projects (where a P3 statute has been in place for some time now). But she also pointed to the promise of P3 jobs in higher education. We’ve already seen significant higher education P3 jobs, from the University of Florida’s Innovation Village, to the dorms at the University of Central Florida, and the dorms and football stadium at Florida Atlantic University. I know of others currently being considered, but not yet ready for announcement. Jane knows of these too and feels this is the start of a new wave of P3’s in Florida that will take us far beyond the realm of transportation. It appears she’s right, so we’ll continue this series of interviews with P3 leaders in the future.

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Jane Garvey, the North American Chair of Meridiam Infrastructure, knows a thing or two about public/private partnerships (“P3”). Meridiam is one of the country’s leaders in P3 projects, from compiling the P3 team and fertilizing it with ideas and experience to investing in the enterprise as a shareholder or lender. Jane is their top person in North America and shared her thoughts with me about Florida’s potential for P3 development. In this blog post and some that will follow, I will share her thoughts with you.

P3s are not ideal for every job. They’re more appropriate for large, complex, innovative projects not neatly fitting into traditional capital programs. The project must be critical to the public owner, as criticality will ensure the facility will be operated for the long-term, thus generating the necessary operational revenue to repay private investors and contractors for their risks. Criticality also ensures strong public sector buy-in, as lack of public commitment to the job may dilute the prospects of success. Historically, critical projects have included transportation as well as social infrastructure, such as schools, courthouses, and teaching hospitals.

The proposed P3 project must have a good revenue stream or it won’t attract investors or lenders. Stable revenue tied to the job, such as shares of federal funds, sales taxes or impact fees, will lure investors. Riskier prospects may deter investors. Without private funding, the P3 delivery method will fail, so it is important for funding to be attracted through assurances of stable revenue sources from which investors may earn an appropriate return on their investment.   

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House Bill 337, codifying public/private partnerships (“P3”) in Florida, was approved by the House last week and sent to the Senate, but it died in the Senate without action before the end of the legislative session last Friday. Although this is a minor loss of momentum for P3s in Florida, it doesn’t change anything as there is still authority for public/private partnerships in Florida public construction. As one attendee asked me at one of our recent P3 workshops, “why do we need this legislation anyways since we can do public/private partnerships regardless of the bill?” He was right and I responded that the legislation had drastically increased statewide awareness of the P3 solution to the public construction budget crunch, which was really the best argument in favor of the bill. So although the bill didn’t pass, it won’t change much and P3s continue to be the hot thing in Florida construction. Stay tuned to this blog for further news, ideas and suggestions about P3s as the process continues gathering momentum even without Tallahassee’s help.

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The general rule is that bid protests must be timely filed in order to be considered. Most government agencies in Florida have specific deadlines for which a bid protest must be filed. These deadlines are expressed in terms of days, or even hours, and may specify the exact method that the protest or notice of protest must be submitted to be considered timely filed. A Protest filed after the deadline is usually considered a waiver of the protestor’s rights. 

There are, however, scenarios where a protest technically filed after the deadline may still be considered. This is exemplified in the recent case Pro Tech Monitoring, Inc. v. State Department of Corrections. There, a protesting bidder was supposed to hand-deliver its formal bid protest petition to the clerk by a certain date. The agency’s clerk, however, did not stamp the petition in until the next day, and the agency determined the protest was untimely. However, the protestor had tried to deliver the protest before the deadline, but could not reach the clerk’s office because the public was not allowed in the area of the building where the clerk’s office was located. The person delivering the protest gave it to the security guard at the restricted area, and even requested and received a time-stamped copy of it. Under those circumstances, an appellate court determined that the protest was in fact timely filed as a matter of law.

The court also relied in part on the doctrine of equitable tolling, which in layman’s terms occurs when someone has been either misled, lulled into inaction, or has been prevented from asserting his rights in some extraordinary way by the government agency. This may come up when a protestor detrimentally relies on a representation made by an agency or a representative thereof. In this case, the agency’s policy of not allowing the public to reach the clerk’s office prevented the protestor from fully complying with the agency’s interpretation of the rule.

The acceptance of protests filed after a deadline are the exception, and are not the rule. Agencies, however, generally have discretion to accept late filed protests and might do so under the right circumstances.

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Florida Statutes, Section 287.055, known as the Consultants' Competitive Negotiation Act ("CCNA"), provides a framework for the public procurement of professional services. Professional services are defined to include those services "within the practice of architecture, professional engineering, landscape architecture, or registered surveying and mapping".

The CCNA provides that the price of the service is not a factor in the evaluation and ranking of the firms. Price may only be considered as part of the negotiation phase. Further, an agency is limited to negotiating price with one firm at a time. In other words, the only pricing that is received is from the top ranked firm, and pricing from the second ranked firm is not received unless negotiations with the first firm are formally terminated.

There is a Bill pending in the Florida Legislature that would modify the above process. Specifically, Senate Bill No. 246 provides for proposed amendments to the CCNA, including the introduction of a "best value selection" process. If enacted, the best value selection process would enable an agency to seek pricing from more than one of the ranked firms. The process would be a two stage procedure, wherein after firms are evaluated and ranked, pricing could be sought from the ranked firms. From there, the agency would select the firm determined to provide the best value; provided, however, that the criterion pertaining to compensation may not exceed 50 percent of the total weight of the published advertising criteria.

The best value procedure would be a significant change to the CCNA process. Accordingly, those firms which provide professional services to public agencies may want to track the progress of SB 246. If enacted, it would take effect on July 1, 2012.

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Florida Statutes, Section 287.055, known as the Consultants' Competitive Negotiation Act ("CCNA"), provides a framework for the public procurement of professional services. Professional services are defined to include those services "within the practice of architecture, professional engineering, landscape architecture, or registered surveying and mapping".

The CCNA provides that the price of the service is not a factor in the evaluation and ranking of the firms. Price may only be considered as part of the negotiation phase. Further, an agency is limited to negotiating price with one firm at a time. In other words, the only pricing that is received is from the top ranked firm, and pricing from the second ranked firm is not received unless negotiations with the first firm are formally terminated.

There is a Bill pending in the Florida Legislature that would modify the above process. Specifically, Senate Bill No. 246 provides for proposed amendments to the CCNA, including the introduction of a "best value selection" process. If enacted, the best value selection process would enable an agency to seek pricing from more than one of the ranked firms. The process would be a two stage procedure, wherein after firms are evaluated and ranked, pricing could be sought from the ranked firms. From there, the agency would select the firm determined to provide the best value; provided, however, that the criterion pertaining to compensation may not exceed 50 percent of the total weight of the published advertising criteria.

The best value procedure would be a significant change to the CCNA process. Accordingly, those firms which provide professional services to public agencies may want to track the progress of SB 246. If enacted, it would take effect on July 1, 2012.

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Public agencies typically reserve the right to reject all bids and to re-advertise for bids. Why would an agency do this?

It may be that the agency has a budget. If the bids received exceed the budget, the agency may need to scale back the scope of the project. Alternatively, the agency may realize that the specifications were somehow deficient, and in need of revision.

If this occurs, then the agency may decide to reject all bids and re-advertise the project. If, at the same time, the agency provides notice of its intent to re-advertise the project, then the initial bids may be retained as exempt from public disclosure until the agency makes a decision on the new solicitation. This way, the bidders will not know the pricing submitted by their competitors until after new bids are submitted, and to prevent anyone from gaining an advantage.

Challenging an agency's decision to reject bids and readvertise may be difficult. For example, Florida Statutes, 120.57(3) provides that the standard of review for matters falling within that statute is whether the intended rejection of all bids is "illegal, arbitrary, dishonest or fraudulent". Accordingly, if the agency has a good faith basis to reject all bids, its decision will not likely be overturned.

Thus, when bidding on a public project, bear in mind that the agency may not be required to award the project. In the event of a re-bid, you should make every effort to determine whether the specifications or budget for the project have changed prior to submitting a new bid.

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When evaluating procurement specifications, bidders and proposers want to look for every advantage they can get. One frequent specification that they may be able to take advantage of is the Local Preference. The Local Preference is usually set forth in statutes or a local agency’s code, and/or in the agency’s solicitations. Generally, the Local Preference provides an advantage for bidders or proposers which maintain headquarters or a permanent place of business in agency’s local area. For example, a bidder may be able to qualify for a Local Preference in a county if it had a permanent place of business in that county. 

Often, the Local Preference rules will require the bidder to maintain a local office for a specified time period before the solicitation was issued, in order to qualify for the Local Preference for that project. Further, bidders or proposers may be required to submit proof to that agency verifying the local address. This may include the lease or ownership paperwork for the location, or a business tax receipt.

Here’s how the Local Preference works. Suppose a county in Florida has a Local Preference ordinance which says bidders with a permanent place of business in the county will enjoy a 5% preference during the bid evaluation. The County issues a solicitation seeking the lowest responsive and responsible bid. The bids are submitted and evaluated, and the lowest bid is from the ABC Corporation for $100,000. ABC Corp. is located outside the County. The second lowest bidder, XYZ Corporation, submitted a bid for $104,000, but it has a permanent place of business in the County and qualifies for the Local Preference.

XYZ will actually get the recommended award, even though its bid is $4,000 higher than ABC’s. Since XYZ is a local business, a 5% discount will be applied to its bid during the evaluation process, reducing it to $98,800. That means for evaluation purposes, its $1,200 less than ABC’s bid. This does not mean, however, that the value of XYZ’s bid is actually reduced; this is only for the evaluation. If the County enters into a contract with XYZ, it will be for $104,000. Thus, local businesses should seek to take advantage of Local Preference ordinances or specifications whenever possible.

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So the public agency makes a contract award decision and you are unhappy. Do you have the right to complain? Before filing a protest, you need to have standing to challenge the decision. What does that mean?
 
In order to have standing, an unsuccessful bidder must establish that it has a "substantial interest" to be determined by the agency. Stated differently, if you challenged the award to the recommended awardee, would it benefit your firm's interests? On the one hand, courts have held that a "second low bidder" clearly has standing to challenge an award. On the other hand, if dissatisfied bidder was ranked third, fourth, fifth, etc., the interest may not be strong enough to challenge. The issue must be addressed on a case by case basis, and as to whether the grounds to protest or interest would meet the legal test.
 
In one case the "third low bidder" was found to lack standing to protest an award pursuant to Florida Statutes, Chapter 120. In Preston Carroll Company, Inc., v. Florida Keys Aqueduct Authority, 400 So. 2d 524 (Fla. 3rd DCA 1981), the District Court of Appeals held that the public agency's determination as to the calculation of the bid amounts controlled the analysis, and that the bidder found to be the third lowest could not challenge the award. Accordingly, the Court went on to find that an award to the low bidder would not substantially affect the third low bidder.
 
The above decision was based upon the particular facts and evidence presented to the Court. It is important, however, that a dissatisfied bidder determine whether it can meet the test for standing prior to filing a protest. Even if a pending award to a particular bidder seems erroneous, if you do not have standing, then the protest would be subject to dismissal.

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In many bid protests, the ultimate question is whether the bidding irregularity or irregularities at issue gave the winning bidder or proposer an unfair advantage over the other bidders or proposers.  But, not all irregularities matter.  If it’s a material irregularity, like the winning bidder changing its price after the bids have been submitted and evaluated, and contrary to the specifications, that may be considered material.  But if it’s a minor irregularity, public agencies typically reserve the right to waive those.

Guess who decides whether an irregularity is material or minor.  The agency.  Also, keep in mind that public agencies are generally afforded wide discretion in soliciting and accepting bids, and in interpreting their own rules and requirements.  In one Florida case, a bidder submitted a cashier's check instead of a the bid bond required by the Invitation to Bid.  The agency, and later the court, determined that since the cashier's check accomplished the same purpose as the bid bond, it was considered a minor irregularity.  In that case the fact that bidder at issue was also the lowest bidder, and acceptance of the bid saved the agency money on the project, may have motivated the agency’s decision.

Suppose you file your protest, and someone like the purchasing director, for example, denies the protest on the merits.  Can you go straight to the courthouse to file a lawsuit?  The answer is probably not.  Administrative remedies must be exhausted before you can seek relief from the courts.  This means that you have to go through the protest procedure, and see it through to the end.  You may be required to have a hearing before a hearing officer which is a trial-like procedure.  At the end, the hearing officer may make a recommended award based on the facts presented.  That recommended award goes back to the agency, who may make the final award.

Keep in mind that a hearing officer's recommended award is just that, a recommendation.  The order is not automatically reviewable by a court.  There may be times where a protestor can have a non-final order reviewed, but likely only if there are immediate negative consequences and review of the administrative agency's action will not be good enough. 

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Before you file a protest, there are a couple of things to consider. First, do you have the right, or “standing,” to protest? If you are going to protest, you or your company should be able show that your substantial interests will be affected by the proposed agency action. Generally, you can do this by demonstrating that your rights under the procurement process might have been violated, and you should have, or at least could have, won the bid or been the highest ranked firm. 

Second, what are you ranked? Usually, the second ranked bidder or proposer has standing to protest because it was next in line for the award.   It’s usually more difficult to show standing if your are ranked third or lower.  However, you may still be able to protest if you can show that your substantial interests are or will be affected.  Also, if the second ranked bidder protests, bidders ranked third and lower may be able to intervene in the protest process in order to protect its position in the ranking.  Intervening basically allows the bidder or proposer to monitor and participate (usually in a limited fashion) in the underlying protest.

Third, in order to protest, you need a good reason, or reasons, to do so. An award may be overturned if an agency did something that was clearly erroneous, contrary to competition, arbitrary, or capricious. The protest evaluator, such as the purchasing director or an appointed hearing officer, may consider whether the agency acted illegally, arbitrarily, dishonestly or fraudulently.  An arbitrary decision is one that is not supported by facts or logic. A decision is capricious if it is adopted without thought or reason or is irrational.

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One purpose of the government procurement process is for each bidder or proposer to be on equal terms to get fair consideration of their submissions. If the bidding process has been violated, however, a losing bidder or proposer may be able to protest the government agency’s decision.

Generally, the way to win a protest is to show that an agency did something that was clearly erroneous, contrary to competition, arbitrary, capricious or fraudulent.  An arbitrary decision is one that is not supported by facts or logic.  A decision is capricious if it is adopted without thought or reason, or is irrational.

Keep in mind that almost every agency’s rules and regulations are different. That means agencies generally have different protest procedures and deadlines. Usually the deadline to file a protest, or a Notice of Intent to protest if required, is very short. It can be a matter of hours or days. And the information required in the protest, and in submitting the protest, can be very specific.

As mentioned above, some agencies require a Notice of Intent to Protest an award before a formal protest is due. The Notice is usually a short statement from the protestor that it is going to file a protest. Sometimes, however, the complete protest grounds must be stated in the Notice. 

The formal protest is usually the more substantive letter, memorandum, or other written submission that discusses in detail all the protest grounds raised.     

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Florida Statutes provide a framework for public agencies to follow when procuring professional architect, engineering, and surveying services. Since these services are personal and professional in nature, they are typically not awarded on the basis of price. Florida Statutes, Section 287.055 is known as the "Consultants' Competitive Negotiation Act" or "CCNA". Applicability of the Act to a particular project depends upon whether certain monetary thresholds are met.

Where applicable, the CCNA applies to the procurement of certain professional services, including architecture, engineering, landscape architecture, or registered surveying and mapping. The Act also provides requirements for design-build projects. Design-build is a construction project where the agency does not have final design drawings and specifications, and desires to have the same firm provide the design and construct the project.

For professional services, the selection process is more of a qualitative based approach, where price is not the primary consideration. In fact, price is not a consideration at all until the agency has ranked the firms that have responded to the solicitation. Agencies follow a multi-step process selection process. First, the public agency will publish notice of its intent to solicit the professional services, and qualify the firms or individuals who respond. Then, the agency is supposed to short list no fewer than three firms, and which are to be ranked. Once the firms are ranked, the public agency will attempt to negotiate a contract with the top ranked firm on terms that are "fair, competitive, and reasonable". If the negotiations are not successful, then the agency is to formally terminate the discussions and move on to the next ranked firm.

For design-build projects, the CCNA provides that the selection process may be based on the qualitative procedure outlined above, or a competitve proposal process. If the public agency desires to follow a competitive proposal selection process, it must adopt procedures as outlined in the Act.

Finally, the proceedings conducted by a public agency pursuant to the CCNA must be open to the public. For example, if the agency has appointed a committee to evaluate or negotiate a contract with the top ranked firm, those meetings must be open to the public just in the case of meetings conducted in accordance with the Sunshine Law.

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In IFBs, RFPs, RFQs, RLIs, etc., sometimes there are problems with the specifications. The specifications are the instructions, parameters, or guidelines within the public agency’s solicitation. Problems range from typographical or substantive mistakes, vagueness, or parameters that give one bidder or proposer an unfair advantage. When you see any of the above in the specifications, you might need to protest them immediately.

The deadline to challenge the specifications usually comes up very quickly. And if you miss the deadline, your ability to file such a protest is forever waived. For example, under Florida’s Statutes, a challenge to the specifications must be made within 72 hours after the solicitation is posted. If you snooze, you lose.

Different agencies may have different deadlines and procedures for challenging the specifications, so you have to look at the agency’s code or the solicitation itself for guidance. Some agencies do not have any rules for specification challenges. If they don’t you might be able to challenge the specifications at the end of the process, like in your bid protest following the award.

One important, and often overlooked, note. In many government project advertisements, there are amendments or addenda. These are changes, including additions, to the specifications by the public agency made after the initial posted solicitation. You may also be able to file a specification challenges as to amendments or addenda. Usually the same time limitations for regular specification challenges apply to addenda specification challenges. For example, you might have to challenge an addendum within 72 hours after it is posted. Again, it depends on the public agency involved, and the rules are not always the same.
 

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Avoiding common bidding mistakes may be the difference between having your bid rejected, and the award of a lucrative public contract. In our prior posting, we outlined five of what we have described as the "top ten" common bidding mistakes. The following are additional issues to watch out for when preparing a bid for a public agency in Florida.

Your bid must be full and complete. Often times, a solicitation may require bidders to gather information or support well above and beyond simply providing a price. Careful attention should be paid to whether the bid terms have such requirements. For example, the solicitation may require financial statements or narratives relative to prior experience, and which reflect an ability to perform the project. Further, the advertised terms and conditions may not provide blank forms for such information. Thus, preparing the additional information in a form and with the content required by the solicitation is critical.

Next, the terms and conditions of the solicitation may require that you bid alternates. The public agency may not know before receiving bids whether it can complete an entire job within budget. In these situations, agencies may require that bidders provide a base bid for the portion of the project that they agency feels is the core of the project, while requiring alternate pricing for additional portions of the project. This way, the agency can determine how much of the project it can afford to award. If required, it is imperative that you provide a bid as to any such alternatives, even if the agency may not ultimately award the work.

Additionally, if the terms of the solicitations are not clear, seek a clarification. There may be strict deadlines to seek clarification and to give the agency the opportunity to issue an addendum. Further, if the specifications are vague or lack reasonable definitiveness, then you may have to consider a specification protest. Depending upon the particular regulations for the agency, specification challenges may be due within days of the initial advertisement.

Another common mistake involves identification of the business entity which is submitting the bid. Depending upon the corporate structure or other business relationships of the persons or entities that are going to bid, the bid should clearly identify the entity which is offering to perform the work. Bear in mind that this entity must also meet all of the qualifications, and license requirements to be legally qualified to perform the work.

Finally, the solicitation may require disclosure of subcontractors, and their qualifications. Failure to provide this information could impact the agencies' ability to evaluate your bid, and result in a rejection.

In these tough times, there will be significant competition for public work. This also means that public agencies and competitors will be carefully combing through bids to weed out and/or challenge awards to non-responsive bidders. By avoiding common mistakes, you stand the best chance to stay in the running for an award.

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To be considered for an award of a public contract, it is critical that your bid or proposal contain all required information and forms. There are some common mistakes that may result in rejection of a bid and loss of a business opportunity. Avoiding these common mistakes will help ensure that you have an opportunity to compete for the award.

Since there are a number of issues that should be pointed out, we will break this subject out into two postings. Bidders should bear in mind that while public agencies often reserve the right to waive technicalities or minor irregularities, material irregularities from the requirements of the advertisement are generally not permitted. If the public agency finds that a bid  contains a material irregularity, it will likely result in the bid or proposal being rejected as "nonresponsive".

While there is no exhaustive list of mistakes that will be considered material irregularities, we have identified a "top ten" list. The first five are summarized below.

First, the advertisement will set a deadline for submittal of bids. The advertisement may also provide that the bid must be delivered to a particular room and by a particular time. Failure to deliver the bid by the deadline and to the right location will likely result in a rejection of the bid.

Second, bidders must carefully review the advertisement to see if there are minimum qualifications and license requirements. For construction projects, Florida law requires that the public agency obtain evidence of appropriate licensure at the time the bids are submitted. Thus, it is important to include evidence of proper licensure with the bid, and as may be required by the advertised terms and conditions.

Next, the agency must be able to determine the bidder's pricing. If forms are provided, then they should be filled out carefully and completely. Close attention should also be paid to the math. Generally speaking, if an error in the mathematical calculation is made, the public agency may force the bidder to proceed with the project, even if it results in a loss. So whether it is to make sure that the bid is not rejected, or to protect against having to perform a contract at a loss, careful attention needs to be paid to pricing.

Additionally, public projects typically require bidders to submit a bid bond, or other bid security. The failure to submit the bid bond or security will generally result in a rejection of the bid. Bidders should also pay careful attention to the specific requirements for the bid bond or security. For example, the terms of the advertisement may require that the bid bond be supplied by a surety with a particular minimum rating.

Finally, remember to sign the bid. The advertisement may supply a bid form with a signature section, or it may call for the submission of a cover letter or other signed form to be created by the bidder. Remember, a bid is an offer, and must be signed by a person with authority to bind the bidder to perform the contract if awarded.

As stated, there are other common bidding mistakes that we will cover in our next posting. In the meantime, to continue with the theme of "dotting the i's and crossing the t's", paying attention to the above may be the difference in the award of a contract or rejection of a bid as nonresponsive.

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What happens when you get an advertisement, and it has errors?  Maybe you notice the instructions are vague, there are typos, they are asking for things that aren’t relevant, or they are favorable to one bidder or proposer over another.  Well, you can challenge the specifications, but you had better get it in on time.

The point of a specifications challenge is to bring these issue up at the beginning of the process, rather than at the end after everyone has spent a lot of time, effort, and maybe money putting together the proposal.  It also helps the advertising agency make corrections that it otherwise may have missed.  It also may help you get a more favorable ranking by eliminating any unfair advantages to other bidders or proposers.

Usually the procedure to challenge the specifications is set out in that particular agency’s code.  These procedures and deadlines vary though, so be sure to look up the right code.

The most critical thing about a specification challenge is the deadline to file one.  For example, under Florida Statutes, a challenge to the specifications must be made within 72 hours after the solicitation is posted.  That is a very quick timeframe.  If you miss the deadline, you may lose your ability to challenge the specifications.  If a proposer finds a problem with the specifications after the deadline has passed, it may be too late to do anything about it. 

If the agency does not require specification challenges, a bidder or proposer may be able to challenge them pursuant to the general protest procedures established by the agency.

So be aware whether you have to file a specification challenge, or lose your right to do so, and when that protest is due.

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How do you monitor a public agency's review and evaluation of bids and proposals? What right do you have to observe evaluation committees when proposals are evaluated? The answers to these questions provide assistance to bidders who want to actively monitor the award process.

First, Florida Statutes, Chapter 119, known as the Public Records law provides that bids and proposals are generally open to public inspection and copying at the time of a notice of a decision or intended decision, or within 10 days after the bid or proposal opening, whichever is earlier. While there are some limited exceptions to this general rule, bidders that want to obtain information as to their competitor's bids or proposals can do so by making a public records request. Additionally, bidders may make public records requests for bid tabulation sheets, memorandum or other documents that reflect a review and analysis of the bids and proposals and the evaluation process. This way, you can become familiar with your competitor's terms and conditions, and stay on top of the review process. By doing so, you will also be better positioned to assess whether there are any grounds to protest. Protests will be the subject of future postings.

Next, bidders are also entitled to sit in and observe the deliberations of evaluation committee meetings and the meetings of governing bodies. The Florida Sunshine Law (Florida Statutes, Section 286.011) generally requires that meetings of public bodies and committees with delegated authority to evaluate bids and proposals be open to the public. This means that the body or committee is required to provide public notice of scheduled meetings, and that bidders are permitted to attend the meeting. It does not necessarily mean that bidders will be afforded the right to speak at the meeting, but at a minimum, you have the right to attend as a member of the public.

Similar to obtaining public records, attending public meetings affords bidders the opportunity to stay up to speed on the review and evaluation process and may provide critical information in the event the award is protested. Note, you may not be the one to protest, but what if a competitor does and you were the selected bidder? If you attended the public meetings, you may be better positioned to assist the agency with the defense of the award.

Thus, it is important to stay on top of the award process. This is true in case you want to challenge the decision, but also in case you need to defend it.

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Have you ever responded to an ITB after being shortlisted in response to an RFQ?  If you are seeking a government contract and don’t know what any of this means, don’t worry, you are not alone.  Public agencies advertise their contracts and projects through a variety of methods and vehicles, which are usually referred to by acronyms.  While they seem confusing at first glance, once you become familiar with the terminology, you’ll be able to better respond to the advertised project.

An Invitation for Bid ("IFB"), or Invitation to Bid ("ITB"), is usually a set of specifications that have been decided on and defined by the advertising agency.  Price is usually the most important factor.  The bidder that’s has the lowest price usually wins the award.  However, the bidder also has to be responsive and responsible.  The bid is generally responsive if includes of the information sought in the ITB’s or IFB’s specifications.  A bid is considered responsible if it appears that the bidder has the ability to perform the contract.

Agencies usually use Request for Proposals ("RFP") when they do not know what all the specifications or scope of work will be.  Proposers may be required to submit a plan describing how they plan to perform the project.  Price is generally still a factor, but there may be other factors like experience, capability, and management ability.  Like an ITB or IFB, agencies will evaluate whether the proposals are responsive and responsible. 

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Contractors looking for work in these tough times should keep public projects in mind. If you are not familiar with the public procurement or "bidding" process, knowing the basics will help in getting started. Most public agencies have standard policies and procedures for advertising and awarding contracts. The first step is identifying the public agencies that need your services. From there, you will need to determine how the agency advertises its projects, and the terms and conditions for the particular project.

In Florida, there are layers of government, all of which advertise and award construction work. The tricky part is that these agencies all have their own requirements. For example, State agencies such as the Florida Department of Transportation, may be subject to the requirements of statutes and administrative regulations that may not be applicable to local government agencies. In other words, public procurement in the State of Florida is not a "one size fits all" process. For local governments, including counties and municipalities, there may be purchasing ordinances and policies that apply to the particular agency. Determining what the process is for the agency you are interested in doing work for is critical.

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