You Must Have Standing to Protest Bids
So the public agency makes a contract award decision and you are unhappy. Do you have the right to complain? Before filing a protest, you need to have standing to challenge the decision. What does that mean?
In order to have standing, an unsuccessful bidder must establish that it has a "substantial interest" to be determined by the agency. Stated differently, if you challenged the award to the recommended awardee, would it benefit your firm’s interests? On the one hand, courts have held that a "second low bidder" clearly has standing to challenge an award. On the other hand, if dissatisfied bidder was ranked third, fourth, fifth, etc., the interest may not be strong enough to challenge. The issue must be addressed on a case by case basis, and as to whether the grounds to protest or interest would meet the legal test.
In one case the "third low bidder" was found to lack standing to protest an award pursuant to Florida Statutes, Chapter 120. In Preston Carroll Company, Inc., v. Florida Keys Aqueduct Authority, 400 So. 2d 524 (Fla. 3rd DCA 1981), the District Court of Appeals held that the public agency’s determination as to the calculation of the bid amounts controlled the analysis, and that the bidder found to be the third lowest could not challenge the award. Accordingly, the Court went on to find that an award to the low bidder would not substantially affect the third low bidder.
The above decision was based upon the particular facts and evidence presented to the Court. It is important, however, that a dissatisfied bidder determine whether it can meet the test for standing prior to filing a protest. Even if a pending award to a particular bidder seems erroneous, if you do not have standing, then the protest would be subject to dismissal.