A DIFFERENT POINT OF VIEW: Bid Protests from the Vendor s Perspective

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14 th Annual Florida Government Purchasing Conference September 14, 2006 Karen D. Walker, Partner Holland & Knight LLP 315 S. Calhoun St., Suite 600 Tallahassee, Florida 32312 (850) 425-5612 karen.walker@hklaw.com A DIFFERENT POINT OF VIEW: Bid Protests from the Vendor's Perspective

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Introduction to the Vendor's Perspective Nobody likes offer dissents (counting sellers). Offered dissents are costly. Merchants know they have a high weight of verification in an offer challenge. Merchants need their clients to like them. Merchants ordinarily don't care for instability.

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If Nobody Likes Protests, Why Do We Have Them? Cash is a major variable. Security of piece of the overall industry. Merchant moving into new line of business. Merchant feels that opposition was uncalled for. Seller trusts the contender can't carry out the employment.

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Three Types of Protests Protest of Specifications. Challenge of Rejection of All Bids. Challenge of Intended Award.

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What Does a Vendor Do When It Receives the Specifications? Specialized staff conducts survey of the specialized prerequisites. In-house legitimate staff (and potentially outside advice) audits the proposed contract terms and conditions. Seller considers conceivable joining or subcontracting connections. Choice is made regardless of whether to react to the requesting. Choice is made regardless of whether there is anything in the details that warrant a dissent of the determinations. Merchant starts creating questions for bidder's meeting as well as the question and answer time of the acquirement.

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Why Most Vendors Don't Protest the Specifications Vendors would prefer not to chafe the obtaining element. Sellers expect that numerous issues with the particulars can be tended to through the question and answer period. Dissent bond is steep and it is hard to legitimize bringing about noteworthy cost right off the bat all the while. Sellers don't know or don't comprehend that in the event that they don't opportune dissent the determinations they forgo their entitlement to grumble about the details later. The final product of an effective dissent of the particulars is revised determinations – there is no assurance that the seller will be granted the agreement.

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Why Some Vendors Do Protest the Specifications The particulars make it inconceivable for the merchant to present a responsive offer, proposition or answer. The seller trusts the determinations are composed to profit a specific contender. The merchant trusts that the particulars don't accommodate a level playing field. The determinations are so ambiguous or befuddling that the seller trusts it doesn't have the data it needs to figure a reaction. The merchant can't live with the proposed contract terms and conditions. Merchants realize that all determination dissents are determined through settlement preceding hearing.

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Standard of Proof for Specifications Protest Whether the proposed organization activity is plainly wrong, in spite of rivalry, self-assertive or whimsical. Florida courts have characterized a self-assertive activity as "one not upheld by certainties or rationale, or despotic." An impulsive activity is one "which is taken without thought or reason or irrationally." Agrico Chem. Co. v. Bureau of Envtl. Control , 365 So. 2d 759 (Fla. first DCA 1978).

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To prevail in a detail dissent, Florida courts have demonstrated that the bidder must demonstrate that: The particulars are vague to the point that bidders can't figure a precise offer; or That the determinations are unreasonable to the point that they are either difficult to follow or excessively costly, making it impossible to do as such and to be focused. Support Ctr. for Persons With Disabilities, Inc. v. Dep't of Children & Family Servs. , 721 So. 2d 753 (Fla. first DCA 1998).

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Examples of Recent Protests to Specifications Hadi v. Freedom Behavioral Health Corporation , 927 So. 2d 34 (Fla. first DCA 2006). Test to particulars in a RFP by the occupant administrator of a sexually savage predator office. Tested particulars required potential merchants to understand a generous bit of their yearly incomes from overseeing American Correctional Association ("ACA") authorize private restorative offices, and that the sexually rough predator office be intended to meet the ACA jail principles for security. DCF directed a casual managerial hearing and maintained the particulars as drafted. The First DCA avowed finding that DCF's choice to incorporate the tested RFP details was sane and bolstered by rationale and reason regardless of the possibility that the particulars may block the dissenting seller from offering.

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Miami-Dade County School Board v. School Food Service Systems, Inc. , DOAH Case No. 05-4571BID, 2006 WL 352220 (Fla. Div. Administrator. Hrgs. Feb. 13, 2006). Test to details in ITB for dry oat. Tested details: (1) requiring a producer to offer no less than eight assortments of oat that meet Nutritional Standards, and (2) determining certain affirmed brands. ALJ found that there was a levelheaded reason for the Board selecting a predetermined number of flavors that met Nutritional Standards. ALJ presumed that the ITB was not expected to imply that the endorsed marks particularly recognized in the determinations were the main responsive brands. In any case, the ALJ noticed that if the particulars required certain brand name grains to be responsive, the details may disregard government acquisition gauges as prohibitive of rivalry.

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Example of a Successful Specifications Protest Bay Point Schools, Inc. v. Branch of Juvenile Justice , DOAH Case No. 05-1540BID, 2005 WL 2477499 (Fla. Div. Administrator. Hrgs. Oct. 4, 2005). Test to RFP for a 88-opening contingent discharge program. Dissent claimed that arrangements in RFP vested unbridled attentiveness in the organization permitting it to apply shrouded conditions and discretionarily grant the agreement. ALJ found that RFP did not agree to administrative orders requiring achievement paradigm in view of recidivism. For a similar reason, the ALJ found that the RFP was as opposed to rivalry. ALJ found that the RFP was unmistakably incorrect, in spite of rivalry, discretionary, and eccentric by designating the scoring of the budgetary obligation area of the RFP to Dun & Bradstreet compliant with an undisclosed recipe and undisclosed weighting of elements.

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Tips for Avoiding Specification Protests Design details to advance most extreme rivalry. Try not to outline particulars to support one forthcoming merchant or a constrained gathering of imminent sellers. Obviously depict the item or potentially administrations being acquired so that forthcoming sellers can define offers. Unmistakably depict assessment and scoring criteria including elements that will be assessed and weight that will be connected to the components. Incorporate dialect in details putting planned sellers on notice that determination dissents must be recorded inside a specific timeframe or the privilege to test particulars is postponed. Incorporate a question and answer period in the obtainment procedure.

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Protests to Rejection of All Bids Vendors once in a while challenge a dismissal of all offers since they are extremely troublesome, and practically unthinkable, to win. Standard of audit is higher than in different dissents. The dissenting merchant must demonstrate that the office's planned choice to reject all offers is illicit, subjective, untrustworthy or fake. § 120.57(3)(f), Fla. Detail. (2005); Department of Transportation v. Forests Watkins Constructors , 530 So. 2d 912 (Fla. 1988). Case law perceives that organizations are managed wide prudence to reject all offers. See Gulf Real Properties, Inc. v. Bureau of Health and Rehabilitative Services , 687 So. 2d 1336 (Fla.1st DCA 1997) (dismissal of all offers must stand unless protestor demonstrates that the reason or impact of the dismissal of all offers is to overcome the question and uprightness of aggressive offering).

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Legislative Update Relating to Rejection of All Bids HB 1369 – In an obtainment including the dismissal of all offers, recommendations or answers in which the organization simultaneously sees its purpose to reprocure (and on account of an ITN reissues an ITN inside 90 days), the rejected offers, proposition or answers stay excluded from the Public Records Act until: (1) the office gives notice of a choice or expected choice concerning the reissued requesting, or (2) the office pulls back the reissued sales. For this exception to apply as for ITBs or RFPs, it gives the idea that the dismissal of all offers must happen before 10 days after offer or proposition opening when the offers or recommendations will generally get to be open record.

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Tips for Avoiding a Protest for Rejection of All Bids Expressly claim all authority to reject all offers in the requesting archive. In notice of plan to reject all offers, simultaneously demonstrate the office's goal to reprocure if that is the office's aim at the season of the dismissal. Try not to reject all offers keeping in mind the end goal to in this way endeavor a sole source or other non-aggressive obtainment of the items or administrations that were the subject of the acquisition for which offers were rejected.

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Protests of Intended Awards

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What Does the Winning Vendor Do When the Intent to Award a Contract is Posted? Praise (understanding that honor is not last until challenge period runs). Hold up to figure out whether a dissent will be documented testing the proposed grant. Line up lawful direction if seller foresees the proposed honor will be tested. Document an open records ask. Start adapting to play out the agreement unless a dissent appears to be inescapable.

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What Does a Losing Vendor Do When a Notice of Intent to Award a Contract is Posted? Hold legitimate guidance if the merchant has not done as such as of now. Document an open records ask. Lead a specialized re