Edward J. Kinberg
June 9, 2014 (Originally published in Florida Today in June, 2014)
Last month’s article discussed the first deadline for filing a protest with a state agency. This month, I will discuss the next deadline, filing the formal written protest.
A formal written protest must be filed within 10 calendar days (counting weekends and holidays) of the day the notice of intent to protest was filed. The formal protest must state the facts and law you are relying on to support your protest. In addition, you must post a bond, typically 1% of the estimated contract amount. While the general protest statute requires the bond to be delivered within 72 hours of the time of your notice, some state agencies have different deadlines. As such, as soon as you begin considering a protest, check with the agency to determine the deadline to provide the bond and the amount of the bond.
If you cannot obtain a bond, the agency “may” accept a cashier’s check, official bank check or money order. The purpose of the bond is to establish a fund from which an agency may recover its “costs” if you do not win the protest. These “costs” are limited to such items as filing fees, depositions and cost of copies; they do not include attorney’s fees.
If you win the protest, you will be able to recover your “costs” and the bond will be returned to you. While you may be able to recover attorney’s fees in some types of protests, the agency can only recover attorney’s fees if the administrative law judge finds you filed the protest for an “improper purpose.” Such findings are relatively rare.
Submission of your formal protest starts a 7-day period in which the agency is required to provide an opportunity to resolve the protest by mutual agreement. If an agreement is not reached, the next step depends on whether there are disputed facts. If the facts are not disputed, an informal proceeding is held before a person appointed by the agency. If there are disputed facts, the protest is referred to the Florida Division of Administrative Hearings (DOAH) to be heard by an administrative law judge (ALJ).
The ALJ is required to start a hearing on the protest within 30 days of receipt of the protest and to issue a decision within 30 days of the close of the hearing. The ALJ will then issue a recommended order to which each party will have 10 days to submit comments.
Next month’s article will discuss some of the common issues raised in state bid protests.