Case Law
Wester v. Belote, 103 Fla. 976, 138 So. 721 (1931).
Procurement process is aimed at the protection of the public against:
• Collusive contracts
• Fraud
• Bias
• Favoritism
Procurement process is designed to:
• Secure fair competition on equal terms to all bidders
• Secure the best values at the lowest possible expense
• Provide an opportunity for an exact comparison of bids
• Assure that the most responsive bid is accepted
Silver Express Co. v. District Board of Lower Tribunal Trustees of Miami-Dade Community College, 691
Pursuant to Florida’s “Sunshine Law,”
• All meetings of any state agency at which official acts may be taken
• Must be conducted as open, public meetings
• Absent that, any action taken during such meetings is improper
• The result is that the agency’s action is void and can be given no effect
• Any private discussions by evaluation committee members is prohibited
• Includes communications among the members of the evaluation committee
• Any other party involved in the ultimate contract award
• Includes all correspondence such as email, text and inter-office memoranda
• Violations would be a basis to challenge a contract award
Intercontinental Properties, Inc. v. HRS, 606 So. 2d 380 (Fla. 3d DCA 1992)
Considerations of Bid Protest:
• Filing of a timely formal protest stops the bid process
• Prior to forwarding a protest to DOAH for hearing
• Florida’s APA requires seven days, excluding weekends and holidays
• To provide an opportunity for the parties to resolve the protest
• By mutual agreement of the parties
Case Law: Responsive Bids
A responsive bid conforms to all material respects of the bid
• Minor irregularity versus a material variance
• A material variation:
(1) affects the price of the bid
(2) gives the bidder an advantage or benefit not enjoyed by other bidders
(3) adversely impacts the interests of the procuring agency
Sweeping Corporation of America, Inc. v. FDOT, Case No. 91-8203, 1992 WL 881039 (DOAH March 24, 1992
Conditional language may be deemed non-responsive:
• With respect to material matters such as price
• Contingent on specification that is not stated in the RFP or ITB
City of Pensacola v. Kirby, 47 So. 2d 533, 535 (Fla. 1950)
Case Law of Bid Protest: Responsible Bidders
• A bid may be “too good to be true” and factors may indicate:
• The bidder cannot perform
• A public entity is not required to accept the lowest dollar bid
• May bypass the “lowest bid” if that bidder or the bid itself is not “responsible.”
Duboise Const. Co. v. City of South Miami, 108 Fla. 362, 146 So. 833 (1933); Engineering Contractors
The “responsible bidder” requirement:
• Vests discretion in the public authority
• To determine if lowest bidder is the lowest responsible bidder
• By considering various performance related factors such as (Examples):
• Facilities available
• Financial resources
• Ability, experience, quality of previous work
Information Sciences Corp. v. United States, 73 Fed. Cl. 70, 100-103 (U.S. Ct. Fed. Claims Sept. 19,
Federal authorities illustrate that a public entity may consider:
• Performance, financial, and other factors
• A bid is abnormally low, unrealistic, or a “low-ball” offer
• Inadequate resources to create risk of abandon or short-change performance
• The federal decisions have termed this a “price realism analysis”
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