Bid Protest Filing Deadlines Are Strict, Unless….
The general rule is that bid protests must be timely filed in order to be considered. Most government agencies in Florida have specific deadlines for which a bid protest must be filed. These deadlines are expressed in terms of days, or even hours, and may specify the exact method that the protest or notice of protest must be submitted to be considered timely filed. A Protest filed after the deadline is usually considered a waiver of the protestor’s rights.
There are, however, scenarios where a protest technically filed after the deadline may still be considered. This is exemplified in the recent case Pro Tech Monitoring, Inc. v. State Department of Corrections. There, a protesting bidder was supposed to hand-deliver its formal bid protest petition to the clerk by a certain date. The agency’s clerk, however, did not stamp the petition in until the next day, and the agency determined the protest was untimely. However, the protestor had tried to deliver the protest before the deadline, but could not reach the clerk’s office because the public was not allowed in the area of the building where the clerk’s office was located. The person delivering the protest gave it to the security guard at the restricted area, and even requested and received a time-stamped copy of it. Under those circumstances, an appellate court determined that the protest was in fact timely filed as a matter of law.
The court also relied in part on the doctrine of equitable tolling, which in layman’s terms occurs when someone has been either misled, lulled into inaction, or has been prevented from asserting his rights in some extraordinary way by the government agency. This may come up when a protestor detrimentally relies on a representation made by an agency or a representative thereof. In this case, the agency’s policy of not allowing the public to reach the clerk’s office prevented the protestor from fully complying with the agency’s interpretation of the rule.
The acceptance of protests filed after a deadline are the exception, and are not the rule. Agencies, however, generally have discretion to accept late filed protests and might do so under the right circumstances.