Recently, the team at Loren & Kean Law assisted a client with a successful protest of a county bid award to another bidder. After the county reviewed our protest, it deemed the lowest-bidder’s bid non-responsive and issued a revised award to our client. Putting together the protest required a fast response and collaboration with our client. As a result of the experience, we have come up with a few practical points our clients should be aware of in the event a bid protest needs to be filed. In short, these tips come down to a simple recommendation: get your attorney involved as soon as the award is issued.
Bid protests are governed by many different rules, each of them can be different. Protests of awards issued by state agencies or the Florida Department of Transportation are governed by statute. Most municipalities have their own protest requirements within their local ordinances. The common theme is that if you miss a deadline under the rules, which can be as short as two days from the issuance of the award, you waive your right to protest. Practical Tip: If you think you want to protest an award, contact your attorney immediately so they can begin to research the applicable deadlines even if you have not determined the factual basis for your protest yet. This will allow your attorney to get familiar with the procedural requirements for the protest while you put together the substance.
The next step is to determine the basis for your protest. As attorneys, we are not nearly as familiar with the bid documents as our clients. If your bid was the lowest but deemed non-responsive for one reason or another, the basis of the protest is relatively clear – why was your bid deemed non-responsive and is it justified? The harder situation is when you are the next-lowest bidder trying to determine if the lowest bidder should have been disqualified. Generally, you have gone through every page of a solicitation in great detail to prepare your bid, we recommend starting at the parts of the solicitation that gave your bid team the most trouble. It is often there that you can find required information that the lowest-bidder failed to include in its bid, which would likely give you a basis to protest the award.
The faster you are able to complete these two steps (i.e., determining the procedural requirements and substantive basis for your protest) the better situated you will be for a successful protest. The last thing you want is to have a strong basis to protest an award but come to find out that you failed to timely preserve your rights. Loren & Kean is pleased to have been able to assist our client in successfully navigating this process, and are available to answer any questions you may have with respect to your rights to protest an award.
Bruce E. Loren and Kyle W. Ohlenschlaeger of the Loren & Kean Law Firm are based in Palm Beach Gardens and Fort Lauderdale. Loren & Kean Law is a boutique law firm concentrating in construction law, employment law, and complex commercial litigation. Mr. Ohlenschlaeger focuses his practice on construction law and a wide range of commercial litigation disputes. Mr. Loren has achieved the title of “Certified in Construction Law” by the Florida Bar, exemplifying the Bar’s recognition of this expertise. The firm’s construction clients include owners/developers, general contractors, specialty contractors in every trade, suppliers and professional architects and engineers. Mr. Loren and Mr. Ohlenschlaeger can be reached at [email protected] or [email protected] or 561-615-5701
