Edward J. Kinberg
May 28, 2014 (Originally Published in Florida Today in May, 2014 )
Bid Protest – Before Bid Submission
My company routinely bids on work for local, state and federal agencies. If I do not challenge unclear bid specifications in a timely manner, then do I loose my chance to protest?
You have the right to protest any contracting action by a public body that you believe is unfair. It is important to know that the rules for doing so are different at every level of government, from city and county (local) to state and federal. Given the complicated procedures involved in protests, this will be the first in a series of articles on the subject.
Most local government solicitations identify bid protest procedures and the location at which a protest must be filed. In addition, most local codes in the State of Florida are published on municode.com. While this website has a variety of both free and fee services, it includes a no cost library of most codes. To find a local code simply click on the “Browse the Library” button and then on the State of Florida on the map. This will take you to an alphabetical list of the local codes published on the website.
There is one common rule that applies at the local, state and federal government levels. If you believe there is something inappropriate in a solicitation, you must raise that issue before bids are due. This is based on the common sense principle that you are required to read bid documents and seek resolution of issues in the solicitation that you believe will hinder a fair and full competition prior to the start of the competition. Failure to request clarification of bid specifications such as technical requirements, pricing and payment terms prior to submitting your proposal/bid will result in forfeiture of your pre-bid protest rights.
The most common issue that must be raised before award involves the clarity of the solicitation. Evaluation procedures may be vague, ambiguous and unclear or contain conflicting requirements. For example, you should be able to clearly understand what the government agency desires and the manner in which offers will be evaluated for award. Another common problem area is an overly restrictive requirement, i.e. a requirement that forces bidders to offer a specific item even though there are other functionally equivalent items that will meet the agency’s needs.
My next article will discuss the procedures for filing and pursuing a bid protest involving a state agency.