Bid Protests Under the Administrative Procedure Act: The Standard of Review, the Protest Hearing, and Further Review

The Administrative Procedure Act (APA) in Florida helps to keep the government’s powers in check by making sure that public agencies follow the rules when making decisions. It also allows citizens to challenge those decisions if they seem unfair. When it comes to bid protests, the APA sets out the procedures for how purchasing contracts for goods or services can be requested, evaluated, and protested. There are several laws in Florida that govern how public agencies can buy things, and the APA is one of them. It’s important to note that municipalities can choose to follow the APA or make their own rules. The state of Florida wants to make sure that public contracts are fair and open. To do this, they have rules and procedures for state agencies to follow when buying things or hiring services. These rules require agencies to use a competitive process for contracts over $35,000. If a party thinks the agency didn’t follow the rules, they can file a protest with the Division of Administrative Hearings. The protest can be about the agency’s decision on a contract, a recommendation for who should get the contract, or if they reject all bids or proposals. The Division of Administrative Hearings will review the protest and give a recommendation, but they won’t replace the agency’s decision. If a company protests a decision to award a contract to someone else, the agency can’t finalize the contract until the protest is resolved, unless there’s a serious danger to public health or safety. But if an agency decides to reject all bids and start over, the company that protested doesn’t have a right to the contract. The agency can reject all bids for valid reasons, and it’s hard to overturn that decision. The rules for reviewing these decisions are set by law, and the protesting company has a tough job to convince the agency made a mistake. When a government agency closes a bidding process and evaluates the bids they received, it can affect competition because all bidders know about each other’s offers. If someone is unhappy with the agency’s decision, they can file a protest within 72 hours and then submit a formal written protest within 10 days. However, only the second-ranked bidder can protest a recommended award. Non-bidders cannot protest unless they have a substantial interest in the contract that is determinable by the agency responsible for the bid. In the City of Miami Beach v. Klinger case, the city awarded a concession contract for charter fishing boats for 10 years instead of the 5 years initially advertised. Klinger, who didn’t bid because of the 5-year term, filed a complaint. The court ruled in Klinger’s favor, saying the city needed to redo the process if they wanted the concession with the longer term. If a nonbidder can show that the contract’s terms changed significantly, they can challenge the decision. If there is a dispute about the facts, it goes to an informal hearing. After exhausting all administrative options, judicial remedies can be sought. Under F.S. §120.57(3)(b), a formal written protest must include specific details about the reasons for the protest, be submitted on time, and sent to the right person. The person filing the protest must also try to work things out with the agency before taking further action. If the protest is still not resolved, there may be a hearing to decide the issue. When reviewing a protest, the judge looks for evidence that the agency made a mistake, acted unfairly, or did something illegal. The judge also considers whether any problems with the bidding process were serious enough to affect the outcome of the contract. When a government agency rejects all bids for a project, a disappointed bidder can challenge the decision if it was made fraudulently, illegally, or unfairly. The burden of proof is on the bidder to show that the agency’s decision was wrong. However, the legal procedures for challenging a bid decision can be time-consuming and may not result in the bidder getting the contract. In some cases, bidders may be able to seek damages for the costs they incurred in preparing their bid and challenging the decision, but the rules on this are not clear and can vary from case to case. When a protestor wins a bid protest, they can’t automatically get the contract. The government agency can’t move forward with their original decision either. The law might need to change to make the process faster and more efficient. Pablo R. Velez and Rafael E. Suarez-Rivas, who work for the City of Miami, wrote an article with the help of law student Yung Truong. They are part of the City, County and Local Government Law Section, and their goal is to promote justice and the law.

Source: https://www.floridabar.org/the-florida-bar-journal/bid-protests-under-the-administrative-procedure-act-the-standard-of-review-the-protest-hearing-and-further-review/