Timeline for Bid Protests in Florida
You bid on a competitive procurement issued by an agency of the State of Florida, and the agency has issued a Notice of Intent to Award the contract to another vendor. All is not lost. Chapter 120, Florida Statutes, provides a process for unsuccessful vendors to protest the agency’s intended award.
Notice of Intent
To preserve the right to bring a protest of an agency’s intended award of a contract, an affected party must first file a written notice of intent to protest with the purchasing agency within 72 hours after the decision being challenged is posted. § 120.57(3)(b), Fla. Stat. (Weekend and state holidays are excluded in the time calculation). Per Rule 28-110.003(1), F.A.C., the Notice of Intent must include sufficient information for the agency to identify the decision being protested and must state that the entity filing the notice intends to protest that decision. The Notice of Intent should be filed with the office making the decision, with a copy to the agency clerk or other person identified in the solicitation document.
Formal Written Petition
After filing a Notice of Intent, a protesting vendor must file its formal written protest or petition by the close of business on the 10th calendar day after the filing of the Notice of Intent. § 120.57(3)(b), Fla. Stat. (Weekend and holidays are included in the time calculation except if the 10th day falls on a weekend or holiday, it would be due on the next regular business day). The petition is filed with the agency clerk.
Within seven business days after a formal written protest is filed, the agency must schedule a meeting with the protestor and other parties to attempt mutual resolution of the protest. § 120.57(d)(1), Fla. Stat. The petition cannot be sent to the Division of Administrative Hearings (DOAH) or an informal proceeding cannot be scheduled until this meeting occurs.
Schedule Informal Hearing or Transfer to DOAH for Proceeding
After resolution has been attempted (and failed), the agency will: (1) schedule an informal proceeding (if there are no factual issues in dispute) or (2) send the petition to DOAH for a formal proceeding (if there are factual issues in dispute). § 120.57(3)(d)2-3, Fla. Stat. There is no specific timeline for referring a bid protest to DOAH in 120.57(3); however, under 120.569(2)(a), referral to DOAH should be within 15 days of receipt of the petition. Agencies frequently miss this deadline, particularly if it appears settlement may be possible. If there is no further discussion of settlement, the protest can be submitted to DOAH the same day as the settlement conference.
The hearing at DOAH before an Administrative Law Judge (“ALJ”) must commence within 30 days of the ALJ being assigned, unless all parties agree to a waiver of the statutory timeframe. Typically, an ALJ will be assigned the same day DOAH receives the protest or the next day. In the proceeding, the protestor has the burden of proof and must prove the agency’s action was contrary to the agency’s governing statutes, rules or policies, or the procurement specifications. § 120.57(3)(f), Fla. Stat. The protestor must also show that the agency’s decision was clearly erroneous, contrary to competition, arbitrary, or capricious. Id. Agency action is “clearly erroneous” if it lacks rational support and the ALJ has a “definite and firm conviction that a mistake has been committed.” Health Mgmt. Sys. v. Agency for Health Care Admin., Case No. 08-2566BID (DOAH Aug. 15, 2008 ) at 21 (Final Order Aug. 28, 2008, adopting Recommended Order) (quoting U.S. v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). “An act is ‘contrary to competition’ if it unreasonably interferes with the objects of competitive bidding,” including to secure fair competition, to avoid favoritism and to secure the best value for the public. Id. “An action is ‘arbitrary if it is not supported by logic or the necessary facts’ and ‘capricious it if is adopted without thought or reason or is irrational.’” Id. (quoting Hadi v. Liberty Behavioral Health Corp., 927 So. 34, 38 (Fla. 1st DCA 2006)).
Typically, the ALJ will immediately issue a pre-trial order setting expedited discovery deadlines and requiring a response on certain issues such as how long the hearing will take. Some ALJs will go ahead and set a hearing date, although most have a pre-hearing conference to set dates.
- Generally, responses to discovery are required within 5 days, including weekends. Thus, parties typically send discovery on Thursday or Friday
- The prehearing order will set deadlines for pre-hearing stipulation and sometimes the end of discovery. It is usually only a few days before the hearing.
- Discovery typically starts immediately and continues until right before trial
- Motions may be filed on various issues right up until trial as well and are usually heard even when filed the day before
- Depending on how many witnesses and how aggressive the other side is, multiple depositions may have to occur at the same time
- Parties may file dispositive motions (i.e., a party lacks standing because they were the 13th bidder and cannot be awarded the bid), but most often, the ALJ will take it under advisement and rule on the legal issues in the final order
- Agency depositions are typically held at the agency to allow for multiple, back-to-back depositions. In this COVID environment, however, we expect the parties to agree upon a remote platform, at least for depositions (Zoom, Skype, etc.)
- Deposition/hearing transcripts are typically expedited. We typically use a local court reporting company called Phipps Reporting, as they are very fast. They offer transcripts in “Real Time,” which means you can access the transcript electronically as it is being typed, and receive a draft the same day, which can be very useful, but is more expensive.
Proposed Recommended Orders
The ALJ always asks the parties to prepare a proposed recommended order. Either 10 days after the hearing or 10 days from receipt of the final hearing transcript, parties can file proposed recommended orders for consideration by the ALJ.
Recommended Order and Final Order
The ALJ enters a recommended order within 30 days after the hearing or within 30 days after receipt of the final hearing transcript. Within 10 days parties can file exceptions to the recommended order with the agency. The agency enters a final order within 30 days after receipt of the ALJ’s recommended order.
This article is meant to provide a brief overview of the bid protest process in Florida. Should you have a particular issue arise or should you desire additional consultation, you may contact the Radey Law Firm.
 Generally, failure to comply with the filing deadlines is deemed a waiver of the right to protest.