No one likes to lose a big contract, but it has happened to every company providing goods and services to other businesses and governments.
For contracts with private businesses, there’s very little recourse. After all, a private business can choose to do business with whomever they would like.
When it comes to government contracting, however, it is a completely different story. The government is spending tax dollars – your money – and there are pages and pages of rules and regulations as to how those agencies must spend those dollars.
Many are spending millions, even billions, of dollars every year on all types of goods and services from cybersecurity protection to toilet paper.
That is at the local and state level. The federal government can authorize more than a trillion dollars in contracted spending in one indefinite-delivery/indefinite-quantity contract.
Government contracts can positively impact a company for years to come, which is why so many companies focus on them.
While a company can rebound from losing a government contract, it still can cost thousands of dollars to put together a proposal or bid for a government contract.
If a business feels like the process was flawed or the award was in error, there are steps the company can take, but it’s detailed and difficult, and it may cost more than the company spent on the proposal in the first place.
The attorneys at The Orlando Law Group can help you. Our firm specializes in business and contract laws and can help any business looking to protest an award from local or federal governments.
What can you protest?
Technically, a business can protest whatever you would like. That said, filing frivolous protests is a waste of money. Plus, while the agency certainly cannot overtly use a past protest against you in a future solicitation, it is human nature to remember a frivolous protest.
So first, start with who can file a protest. Not everyone can. In most cases, you must be affected by the decision because you were a part of the bidding process.
At the federal level, you do not have to bid to protest and can file a pre-award protest. Those protests are usually because the proposal or bid was written in a way that was confusing or did not directly. For instance, the Government Accounting Office gives these examples:
- allegedly restrictive specifications
- omission of a required provision
- ambiguous or indefinite evaluation factors
Most local governments look for protests after the bid is opened and an intent to award has been given.
But, there is often no set outline saying this is what you specifically can protest, but generally you’re looking for things like the ones the federal government initiated plus acts like:
- a violation of Sunshine Laws or improper lobbying by the winning company.
- An ineligible company winning the bid.
- A part of the process that was overlooked or skipped.
In one of the more high-profile bid challenges this year, one of two bidders for a new city marina in West Palm Beach protested.
The company, Safe Harbor, alleged the mayor’s vote on the proposal was illegal as the city’s ordinances give the mayor a vote only in the event of a tie with a vote at the city council. In addition, the company claimed the winning company improperly lobbied city contracts after a news article showed the council received nearly $50,000 in campaign cash from the winning company.
The protest was tossed out because Safe Harbor did not follow the rules of the protest, filing it after the deadline.
How do you protest a bid?
Here’s where it gets very complicated because there is no set answer on how to protest a bid or request for proposals. Nearly every government is different.
For instance, as part of the process, Orange County Government requires the following:
“The protesting party shall mail a copy of the notice of protest and the formal written protest to all other bidders and to any person with whom he/she is in dispute and shall provide the chief of purchasing and contracts with evidence of such mailing.”
Just across the county line, Seminole County Government does not require companies to do that. However, it does require this to happen:
“The bidder has the responsibility to contact the County and request the award recommendation results. The failure to contact the County for the award recommendation or recommended ranking results to determine if a protest is warranted will be considered lack of due diligence.”
Then there is the question of how quickly you must file an intent to protest. In both Seminole County and Orange County, the timing is the same. You have until 5 p.m. on the fifth day after the award recommendation is filed.
According to the state’s Administrative Code, a bid protest with any of the state’s agencies must be done within 72 hours after the award or the intent to award is posted electronically.
With federal contracts, it’s even more confusing because you are allowed to protest a bid before the award. In that case, the rule is 10 days after a company should have known about the defect in the competitive solicitation. After an award is announced, companies wishing to protest must request a “debrief” meeting and will have 10 days to protest after that meeting.
As perhaps the largest contractor in the world, the United States government publishes a 71-page booklet to guide protests, it can be that complicated.
The timing is just one of the issues to examine before filing a protest against. Some solicitations require a “protest bond,” meaning you have to pay to protest.
Even with all of these publications linked in the article describing the process, any singular solicitation can vary from these rules. And the courts are constantly looking at these rules, meaning they can change at any given time.
Just this past summer, a federal appeals court overruled past decisions and changed who was eligible to file a protest with the federal government.
If you think you might want to protest a decision by any government agency, it is imperative you reach out to the attorneys of The Orlando Law Group as quickly as possible.
We understand government contracting and can help you with any potential protest you might have.
The attorneys at The Orlando Law Group help business owners in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout Central Florida.
If you have questions about anything discussed in this article or other legal matters, give our office a call at 407-512-4394 or fill out our online contact form to schedule a consultation to discuss your case. We have an office conveniently located at 12301 Lake Underhill Rd, Suite 213, Orlando, FL 32828, as well as offices in Seminole, Osceola and West Orange counties to assist you.
The articles on this blog are for informative purposes only and are no substitute for legal advice or an attorney-client relationship. If you are seeking legal advice, please contact our law firm directly.
Last Updated on November 13, 2023 by The Orlando Law Group