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Construction Law Authority / Posts tagged "bid"

Court Finds Late Bid Was Not Late

By: Mark J. Stempler

The case:  INSIGHT SYSTEMS CORP., and CENTERSCOPE TECHNOLOGIES, INC. v. THE UNITED STATES

The court: The United States Court of Federal Claims

 

A computer glitch forced disqualified proposers to challenge a U.S. government agency.  Here is an abridged version of what happened.  The United States Agency for International Development (USAID) advertised a Request for Quotations (RFQ).  Eventually during the process, proposers were allowed to submit their revised final quotes either in hard copy form, or electronically via email.  If the proposer submitted the quote electronically, it was its proposer’s responsibility to send in the appropriate information, and to do so timely to the people designated to receive it. 

 

The two Plaintiffs in this case submitted quotations in response, and did so electronically and in their opinion, before the deadline.  The way the system was set up, emails from outside sources directed to the specified USAID email addresses pass from the outside mail server through a sequence of three (3) agency-controlled computer servers, before they are ultimately delivered to the recipients.  To make a long story short, the emails were received by the first USAID server, but due to technical error, were not passed on to the ultimate recipients until after the submittal deadline.  USAID notified the proposers that their proposals would not be considered because they were received after the deadline.  Arguing that late is late, the USAID felt that it did not matter whether the perceived lateness was due to technological malfunctions with its own computer system.

Protect Awards By Intervention in Bid Protests

As competition for public contract awards continues to intensify, consider intervention in the event that an award to your firm is protested. If an administrative protest is filed, the particular agency rules and regulations may provide for intervention. In the context of a bid protest, intervention means having the chance to directly participate in the defense of a protest and participate in the proceedings. Florida case law has held that an awardee has a significant interest in the outcome of an award challenge, and therefore, standing to participate in proceedings. By intervening, you will have the opportunity to directly influence the outcome of a protest, and may in the process, be of significant assistance to the public agency in defense of the award. Don't sit on the sidelines while other parties dispute whether your firm should receive the contract award. Bear in mind, however, that there may be strict time limitations on...

New State Law Requires Public Bid Openings

During the several years, there has been some controversy concerning whether bid openings should be open to the public and what information bidders should have access to. In 2011, the Florida Legislature expanded the exemptions to the Public Records Law enlarging the time for bids to be exempt from inspection and copying from ten days to thirty days from the opening of the bids, or until the time of a notice of intended award, whichever is earlier. Concerns were raised as to access to information, and whether bid openings should be open to the public. This year, the Florida Legislature enacted Section 255.0518, Florida Statutes which requires state and local agencies to open sealed bids for the construction or repairs on a public building or public work during an open meeting conducted in accordance with the Sunshine Law. The agency is further required to announce the name of each bidder and the price submitted in...

Did You Include All Costs In Your Bid?

So it is time to sign your price proposal and get your bid in to a public agency. Have you considered all costs to perform the work, and those that are in addition to the cost of labor and materials? The public agency's terms and conditions should spell out all of the costs that are to be included in the price proposal. Such costs may go well beyond the cost of the work itself. For example, it may be that the cost of bonds, additional insurance coverage, permits and inspections are to be included in the cost of the work, and therefore the bid amount. It is also important to include all required elements as part of your pricing to make sure that your bid is responsive. Accordingly, it is imperative that bidders carefully consider all requirements that have a cost when estimating and calculating a bid. Generally, a public agency may...

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...

Government Bid Protests – An Overview (Part III of III)

In many bid protests, the ultimate question is whether the bidding irregularity or irregularities at issue gave the winning bidder or proposer an unfair advantage over the other bidders or proposers.  But, not all irregularities matter.  If it’s a material irregularity, like the winning bidder changing its price after the bids have been submitted and evaluated, and contrary to the specifications, that may be considered material.  But if it’s a minor irregularity, public agencies typically reserve the right to waive those.

Guess who decides whether an irregularity is material or minor.  The agency.  Also, keep in mind that public agencies are generally afforded wide discretion in soliciting and accepting bids, and in interpreting their own rules and requirements.  In one Florida case, a bidder submitted a cashier’s check instead of a the bid bond required by the Invitation to Bid.  The agency, and later the court, determined that since the cashier’s check accomplished the same purpose as the bid bond, it was considered a minor irregularity.  In that case the fact that bidder at issue was also the lowest bidder, and acceptance of the bid saved the agency money on the project, may have motivated the agency’s decision.

Suppose you file your protest, and someone like the purchasing director, for example, denies the protest on the merits.  Can you go straight to the courthouse to file a lawsuit?  The answer is probably not.  Administrative remedies must be exhausted before you can seek relief from the courts.  This means that you have to go through the protest procedure, and see it through to the end.  You may be required to have a hearing before a hearing officer which is a trial-like procedure.  At the end, the hearing officer may make a recommended award based on the facts presented.  That recommended award goes back to the agency, who may make the final award.

Keep in mind that a hearing officer’s recommended award is just that, a recommendation.  The order is not automatically reviewable by a court.  There may be times where a protestor can have a non-final order reviewed, but likely only if there are immediate negative consequences and review of the administrative agency’s action will not be good enough.