Do you provide goods or services that public agencies purchase? Do you want to pursue public contract awards? Do you know how to get started? These are questions that you may have asked yourself. If you are looking to bid on public contracts, then there are some steps that you can take to put a plan into action.

First, you should identify public agencies that need your goods and services. Some agencies may have purchasing cycles for particular goods and services and knowing when those opportunities will be advertised is critical. Most agencies maintain websites with links to their purchasing departments and/or purchasing procedures. They may also have representatives that can provide guidance on doing business with the agency and whether there are any registration or pre-qualifications requirements. The websites may also list the pending advertisements and bidding deadlines. Prior to contacting an agency, however, be mindful that there may be cones of silence or other restrictions on who you may speak with to get information about a particular contract. There are also private companies that compile bidding opportunities that you may be able to subscribe to.

Once you have identified a public agency that is in need of your goods or services, then make sure that you can meet the agency’s standard contractual terms and conditions. These would include the types of licensure, insurance, bonding, and payment terms, for example, that the agency may require for its contracts and purchase orders. After you know what agencies need your services, and that you are prepared to meet their standard terms and conditions, you have to be prepared to submit a responsive bid by whatever submittal deadline is established by the advertisement. A responsive bid is generally defined as one that conforms in all material respects to the requirements of the solicitation. For example, it is important to provide all  of the required information, price terms and bid forms required by the agency. Dotting the i’s and crossing the t’s is critical when it comes to submitting a bid to a public agency.

Public procurement is a highly specialized area of the law and each contract advertisement and award must be reviewed on a case by case basis. To optimize your chances of success, it is important to carefully review each and every advertisement and to make sure that your bid conforms to the specific requirements. Clerical oversights may be the difference between landing a profitable contract and rejection. For specific questions and concerns with respect to bidding on a particular contract or award related challenges or “bid protests”, legal counsel should be consulted as early in the process as possible.

dv791015When submitting a bid to perform public work, pay attention to the solicitation requirements for the bidding entity. Must the bidding entity possess a particular license? Can any of the work be subcontracted? Do subcontractors have to be listed in the bid? These are all important questions that should be evaluated well in advance of bid submission. Failure to adhere to these requirements may result in disqualification.

Similarly, bidders oftentimes rely on the qualifications of parent or affiliated companies to fulfill experience components of a solicitation. Here too, bidders should carefully review whether such reliance will be considered responsive or if the bidding entity itself must directly possess all of the requisite experience.

For example, Florida Statutes defines “Responsive bid,” “responsive proposal,” or “responsive reply” to mean a bid, or proposal, or reply submitted by a responsive and responsible vendor which conforms in all material respects to the solicitation. What if the solicitation terms require that a bidder possess two years of comparable experience and the bidder relies on a parent or affiliate company to satisfy the requirement? Depending upon the specific terms of the solicitation, the bid may be non-responsive and rejected.

That is exactly what happened in one case. In reviewing an intended award by the Florida Department of Transportation, the Administrative Law Judge for the Division of Administrative Hearings concluded that an ITB contained a requirement that the bidder set forth its experience under penalty of being determined non-responsive if the bidder failed to do so.  The low bidder stated that it and its predecessor had been in business for more that two years.  The Administrative Law Judge concluded that, on its face, this statement was not responsive, and entered an order finding that an award to the low bidder would therefore be arbitrary and capricious. (See, Statewide Process Service of Florida, Inc. v. Department of Transportation, Fla. Div.Admin.Hrgs, Case No. 95-5035BID).

So even though principals of the bidder may have the requisite experience by and through another entity, if the entity that actually submits the bid does not directly possess the experience, the bid may be rejected. If the solicitation documents are unclear as to whether affiliated entity experience may be considered, there may be a process to seek clarification. If the agency agrees that clarification is needed, it may issue an addendum. Putting in the time to review the terms and conditions of the solicitation and bidding through an appropriately qualified entity may be the difference between an award and loss of a business opportunity.

79072825 If you want to challenge the terms of a solicitation or intended award decision and Chapter 120, Florida Statutes applies, then watch the clock. Chapter 120, which is referred to as the Administrative Procedure Act, generally applies to state agencies and departments. Local governments, including counties and cities, typically have their own codes and policies regarding bid protests. Where Chapter 120 applies, there are strict deadlines that must be adhered to.

Section 120.57(3), Florida Statutes, in pertinent part, states:

“Any person who is adversely affected by the agency decision or intended decision shall file with the agency a notice of protest in writing within 72 hours after the posting of the notice of decision or intended decision. With respect to a protest of the terms, conditions, and specifications contained in a solicitation, including any provisions governing the methods for ranking bids, proposals, or replies, awarding contracts, reserving rights of further negotiation, or modifying or amending any contract, the notice of protest shall be filed in writing within 72 hours after the posting of the solicitation. The formal written protest shall be filed within 10 days after the date the notice of protest is filed. Failure to file a notice of protest or failure to file a formal written protest shall constitute a waiver of proceedings under this chapter. The formal written protest shall state with particularity the facts and law upon which the protest is based. Saturdays, Sundays, and state holidays shall be excluded in the computation of the 72-hour time periods provided by this paragraph.” [Emphasis added]

Note that the initial filing deadline for the notice of protest is within 72 hours and not days. Further, the failure properly file the notice shall constitute a waiver of the right to the protest procedure. Accordingly, best practice will be to note the exact time of day of the posting of the decision that you intend to protest and calculate 72 hours from that time.

 

461991811Bidders may have an opportunity to be heard during evaluation committee meetings or in conjunction with other proceedings during a competitive solicitation process.  Members of the public also have the right to a reasonable opportunity to be heard in accordance with a recently enacted Florida Statute, Section 286.0114.

Section 286.0114 went into effect on October 1, 2013, and provides that members of the public have a right to be heard on a proposition before a Florida “board or commission” takes official action.  The opportunity to be heard does not need to occur at the same meeting that the official action takes place, so long as it occurs during the decision making process and is within reasonable proximity in time before the official action is taken.  The board or commission may, however, adopt rules or policies, including limitations on the amount of time that an individual may speak and the number of persons who may speak on behalf of the same group.

As bidders are also members of the public, if the need arises to speak for or against a contract award, the new law provides another avenue to voice your concerns before a final decision is made.  Prior to stepping up to the microphone, however, you should confirm with the agency’s clerk as to whether there are any rules or procedures that have been adopted.  For example, there may be a form that you will need to fill out prior to speaking.

186956838(1)In Florida, public agencies typically have restrictions on bidder communications with public officials and employees. For example, an agency may have a prohibition on communicating with anyone other than a designated representative during the competitive solicitation process. These restrictions are often referred to as a “Cone of Silence”. Violations of the Cone of Silence can result in disqualification of the bidder.

The purpose of a Cone of Silence is to prevent bidders or their representatives from lobbying decision makers while designated staff are afforded the opportunity to evaluate the bids or proposals in accordance with the terms of the solicitation. The restriction on communications may, for example, terminate when the agency’s board or commission meets to make a final decision. At that time the bidder may be able to address the board or commission directly before it makes a final award decision. While the restriction is in place, however, bidders must be extremely careful not to violate the Cone of Silence.

Determining whether a Cone of Silence applies to a particular competitive solicitation may be as easy as reviewing the solicitation document itself. If, however, the solicitation is silent on the issue, it may require some legal research into the applicable agency code, regulations or policies. Even if not stated as a Cone of Silence or restriction on communications, the solicitation document may provide instructions on which agency representative may be contacted for purposes of answering questions.

Considering the potential ramification of an unauthorized communication with a public agency, bidders should be determine whether and to what extent the particular public agency has a restriction, and strictly adhere to any instructions provided for purposes of contacting the agency. Failure to adhere to the restriction on communications could lead to an unnecessary loss of a contract.

The Florida Legislature recently enacted Florida Statutes, Section 119.0701 (Chapter 2013-154) which requires that contracts for services with public agencies, where the contractor is acting on behalf of the agency, must provide a provision mandating compliance with the public records laws.  Specifically, Section 119.0701(2) mandates that the provision require the contractor to:

(a) Keep and maintain public records that ordinarily and necessarily would be required by the public agency in order to perform the service.

(b) Provide the public with access to public records on the same terms and conditions that the public agency would provide the records and at a cost that does not exceed the cost provided in this chapter [119] or as otherwise provided by law.

(c) Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law.

(d) Meet all requirements for retaining public records and transfer, at no cost, to the public agency all public records in possession of the contractor upon termination of the contract and destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. All records stored electronically must be provided to the public agency in a format that is compatible with the information technology systems of the public agency.

Based upon the above, we would expect that public agencies will include the above requirements in contracts going forward, and contractors should adopt internal procedures to ensure compliance with the public records law. The above requirements essentially put the contractor in the shoes of the public agency with respect to public records requests, and contractors will need to be prepared to respond accordingly. Further, it will be very important for contractors to become familiar with the exemptions to the public records law, which are generally set forth at F.S. 119.071.

As referenced above, this requirement applies to those contractors who are “acting on behalf” of the public agency. The determination as to whether the contractor is acting on behalf of the public agency must be made on a case by case basis.

Based upon weekly bid reports, the trend in Florida continues to emphasize design-build requests for proposals (“RFP”) for public works projects. Public agencies view the design-build model as a means to streamline the procurement process as well as an opportunity to contract with one firm which has the responsibility for both the design and construction of a project. As a result, contractors that have historically bid on invitations to bid or other more traditional design–bid-build projects should consider the requirements and pursuit of design-build projects.

Florida Statutes, Section 287.055 defines a design-build firm as follows:

A “design-build firm” means a partnership, corporation, or other legal entity that:
Is certified under s.1. 489.119 to engage in contracting through a certified or registered general contractor or a certified or registered building contractor as the qualifying agent; or

Is certified under s.2. 471.023 to practice or to offer to practice engineering; certified under s. 481.219 to practice or to offer to practice architecture; or certified under s. 481.319 to practice or to offer to practice landscape architecture.

Despite the above definition, in order to actually perform the work, the design work must be performed by a licensed design professional, and the construction work must be performed by an appropriately licensed contractor. Thus, firms that typically bid for design-build work may have both contractors and design professionals on staff, or they may form joint ventures or enter into other contractual relationships to be able to perform both the design and construction aspects of the project.

Ultimately, the specific project terms and conditions, as set forth in the RFP or other advertisement, will control what is required to qualify. Reviewing your options and means to qualify for design-build projects in advance, however, may significantly increase the opportunities available based upon the current trend.

As more state and local governments incorporate green building standards into public construction projects, it becomes important for participants such as contractors and design professionals bidding on those projects to pay attention to the “green” details.  Some projects may require a certain certification rating or level of energy efficient performance.  Some projects may seek a bidder or proposer with have general or specific green qualifications or experience. 
 
Because green building is a relatively new area for many local governments, their bid or proposal specifications may not fully address all the issues.  For example, to what extent will a bidder be evaluated on its green credentials or experience?  If the bidder does not list any green credentials, will it be deemed non-responsive or non-responsible?  Will a bidder’s lack of green qualifications be deemed a minor irregularity or a material issue?  Generally, in determining whether a bid or proposal is non-responsive, the decision for the agency is whether there are material irregularities that cannot be waived. Generally, minor irregularities or technicalities that do not affect price or give a bidder a competitive advantage can be waived in the discretion on the agency. On the other hand, if the irregularity calls into question whether the bidder is capable of performing the contract or, if waived, would provide the bidder with a competitive advantage over the other bidders, then it cannot be waived.
 
Pennsylvania’s Supreme Court rejected a protest on a $20-million LEED project.  An electrical contractor who responded to a Request for Proposals (RFP) cried foul when it did not get the award despite offering the best pricing terms.  The contractor said the procuring agency improperly considered the proposers experience with LEED certification even though that was not listed in the solicitation criteria of the subject RFP.  The agency rejected the protest because it said the winner earned the highest technical score.  It was also noted that the RFP specifically referenced LEED experience in a couple of the evaluated categories (which the winning proposer appears to have had).

 

Typically a bid is considered responsive if it conforms in all material respects to the specifications. This means the bidder has to provide all of the information sought in the Invitation for Bid (IFB), and follow the instructions for submission. A bid is considered responsible if it appears that the bidder has the ability to perform the contract. If an agency does not think a bidder can do the work as it claims, even if that bidder submits the best price, it may not get the award.  Likewise, an RFP must contain all of the terms, specifications, and evaluation criteria so that all of the proposers know how to adequately respond. The evaluation criteria should be explained, and is usually expressed in terms of points awarded for each specific criterion, or the percentage of weight given.
 
Contractors and design professionals must be mindful of new green related evaluation criteria in the specifications.  While they may be readily apparent in vehicles such as Requests for Qualifications, the criteria may not be as apparent in RFPs or IFBs.

Originally posted on the The Green Building Law Blog

Florida recently expanded on its Sunshine Law by establishing that the public has the right to be heard at board or commission meetings prior to official action being taken. The Florida Legislature passed Senate Bill No. 50 (Chapter 2013-227) which requires that the public be afforded a reasonable opportunity to be heard by a State or local boards or commissions. This means that aggrieved bidders may have another opportunity to object to an agency’s award decision prior to a final decision being made.

The Sunshine Law (F.S. 286.011) generally requires that public board or commission meetings be open to the public, and that notice of the meeting is provided. It does not, however, mandate that the public have an opportunity to comment on all matters that may come before the board or commission. The intent of the Sunshine Law is to provide the public with an opportunity to observe the agency’s decision-making process, but not necessarily a right to be heard. Senate Bill 50, which goes into effect on October 1, 2013, creates a new Florida Statute, Section 286.0114 which requires that the public be given a reasonable opportunity to be heard on a proposition before a board or commission takes official action. This would include, for example, county commission or city council meetings.

With limited exceptions, the public must be afforded the right to be heard at or within reasonable proximity of the meeting at which the board or commission takes the official action. Boards and commissions are authorized by the to establish rules or policies which govern the opportunity to be heard, such as specifying a time for public comment; the amount of time that an individual has to address an issue; and forms which may be required to inform of the intent to speak.

At this point, it is unclear whether the new law will be interpreted to apply to advisory boards or committees that are appointed to evaluate or rank bids or proposals. It seems clear, however, that bidders should be granted the right to comment on final award decisions before they are made. The opportunity to be heard does not mean that a bidder should forego a formal bid protest where applicable. If a bid protest procedure is not afforded or if it was otherwise unsuccessful, the opportunity to be heard afforded by Section 286.0114 may provide another opportunity to explain your position prior to final action being taken.