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How Early Legal Advice Can Make a Difference in Florida Procurement

Published: April 22nd, 2021

By: William D. Hall, III

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Companies rush to get legal advice if they believe their bids for Florida procurement contracts were not reviewed fairly, but the most timely legal advice they can secure is early on when they prepare bid proposals. Front-end review of bid documents by lawyers familiar with state requests for proposals and invitations to negotiate may eliminate the small mistakes that can lead to rejection, and it positions companies to make their best case in bid protests.

Florida spends billions of dollars each year for products and services provided by private vendors, making bids extremely competitive. The state has built an efficient, time-sensitive process that is unforgiving for companies that don’t follow every rule to the letter, and it adjudicates protests and appeals quickly. Companies that bring in a legal team only after a bid rejection often are caught flat-footed and find it difficult to catch up in a procedure that is geared to keep Florida government services running without interruption.

Time Is of the Essence

Attorneys with experience in procurement know how to analyze procurement notices and specifications, understand how the state grades bids and are familiar with handling protests. Most importantly, they know that time is of the essence in every step of this process. Florida has set up a system where efficiency and tight deadlines work to the benefit of state agencies determined not to drag out procurement, but it leaves no room for error by bidders.

Getting a fair chance at winning the state’s business begins with understanding the specifications and ensuring they are fair to all bidders. Agencies have a question-and-answer period where potential bidders can ask to clarify anything in the specifications that is confusing or contradictory. Answers to questions then become an addendum to the specs, effectively amending the initial procurement document. A losing bidder can’t claim a spec wasn’t clear after the bids are awarded, so it’s important to find clarity right from the beginning. Specs are legal documents, reviewed by state lawyers before they are issued, and bidders benefit if they have their own lawyers read them.

We sometimes see specs that are written – perhaps unintentionally – so that only one company can fulfill the bid. If there is no substantive reason for such a requirement, it unfairly excludes other companies. Potential bidders have just 72 hours to object to specs they regard as unfair, a daunting deadline for anyone without previous experience in this area.

Our attorneys, some of whom have worked inside state agencies, read proposals drawing on the experience they once used in evaluating them from the other side of the table. Has every spec been addressed? Has the bidder shown it has the resources and ability to provide the service? Does the proposal anticipate what other likely bidders will offer?

Anticipate Protests

Protests are brutally efficient. An administrative law judge rules on bid protests, and while it’s possible to then appeal to the state courts, that usually is not realistic. Once an administrative law judge rules on a protest – usually within 30 days of receiving the matter – the state agency signs a contract almost immediately, and that agreement cannot be unwound.

After a state agency announces bid winners, companies whose bids were rejected have seven days to file notice of their intent to protest the decision. That’s a tight window for a legal team to come in, analyze the decision and competing proposals, and structure a protest. For a law firm, it usually means dropping everything to build a case and get up to speed on the bids and perhaps dozens of competitors. While our firm certainly is prepared to do this, this rush puts both the client and the lawyers in a challenging position. When we’re involved on the front end, we anticipate possible bid scenarios and are on top of possible protests from the first day bids are made public.

Even if you win a bid, you want a lawyer defending your award if there is a protest. The state agency will defend its decision, but since the state doesn’t necessarily care who wins the bid, your lawyer is the more motivated advocate.

Many procurement decisions are challenged, and the state’s decision must be based on whether the award was clearly erroneous, contrary to competition, arbitrary or capricious. This standard covers any favoritism, collusion or dishonesty, but the state doesn’t give you much time to make your case. Again, having a legal team in place may make the difference either in challenging or defending an award.

Award decisions become more complex in ITNs, or invitations to negotiate. In an ITN, bidders who satisfy an initial set of specifications are invited to then negotiate with the state. As with any negotiation, there may be give-and-take on both sides, and you may want your lawyer to have a seat at the table – or at least review negotiation strategy. A company seeking the Florida contract for prisoner phone calls sued in state court when it lost the award, claiming, among other arguments, that the state changed the requirements during the negotiations. An appeals court was unsympathetic and upheld the award, saying in its order that being “out-negotiated” is not the basis for a legal challenge.

No Drama

When Frank McColm, CEO of F.C. McColm Consulting (FCMC) in Tallahassee, prepared a proposal to be on a state-approved list of emergency management and disaster mitigation consultants, he brought in Dean Mead while he prepared the 70-page proposal. “They advised us how to tell our story, ensured we stayed on point and generally made sure we were putting our best foot forward,” he says. “That peer review of our proposal was invaluable.”

FCMC won a place on the list, and Dean Mead then opposed an unsuccessful bidder’s protest. The awards remained unchanged, and there was no drama going forward. “There were so many things we did not know about this process,” says McColm. “Their deep experience gave us a level of comfort and ensured we were able to make our best case without missing anything.”