Florida Public Bidders Must Understand the “Cone of Silence”
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.