Edward J. Kinberg
June 17, 2014 (Originally published in Florida Today in June, 2014)
In my last three articles I discussed the procedural issues involved in protesting a proposed contract by a state agency. This month, I will review some of the common issues raised in protests.
Once a solicitation is posted, you need to carefully review it to make sure the scope of work required by the agency is clear and does not favor a particular company. A contract requirement is considered ambiguous if there are two or more reasonable ways to interpret the requirement. When a solicitation is ambiguous, it can result in giving an advantage to bidders that use the less costly interpretation. Equally important, if you use the less costly interpretation, the agency may use a more costly interpretation which will increase your costs of performance and result in a dispute that could have been avoided.
A solicitation favors a specific company when the requirement is written to require use of a specific product or service that only one company can provide. For example, a solicitation for a copier or copier services may inadvertently be based on the abilities of a specific brand of copier or require a service that can only be provided by one or very few companies. While there may be instances where the agency can justify the restriction, in many cases it cannot be justified.
After an award decision is reached it is important to review the decision to make sure it is fair and made in strict compliance with the terms of the solicitation. Issues that may be considered unfair and subject to protest include improper communication between an agency representative and offeror, violations of Florida’s sunshine law, conditional proposals, proposals that contain terms that are materially different from those in the solicitation or that fail to comply with the requirements of the solicitation, prices that are so low that is unlikely the goods or services can be provided for the offered price, failure of the evaluator(s) to follow the evaluation criteria in the solicitation, evaluator(s) considering award factors that were not in the solicitation and bias or other improper conduct on the part of the evaluator(s).
While this is not an exclusive list of grounds for protesting a solicitation proposal or proposed award, one common theme underlying all protestable actions is that they arise from unfair or improper behavior in selecting a contractor.