This article is an excerpt from The Art of Tendering: A Global Due Diligence Guide, which is available for purchase.
In its April 1995 decision in Port Everglades Authority v. International Longshoremen’s Association, Local 1922-1, the Florida Fourth District Court of Appeal upheld a lower court decision that voided an evaluation process due to breaches of Florida’s Sunshine Law. The case dealt with a tendering process for a crane maintenance contract. A complainant challenged the Port Everglades Authority’s compliance with the statutory transparency requirements that applied to the evaluation process. The Court of Appeal summarized the issue as follows:
A violation of the Sunshine Law occurred when the Port’s Selection and Negotiation Committee (SNC) excluded other competing bidders from the committee meeting during presentations by competitors. The Port agrees that it would be a violation of the Sunshine Law to allow an agency to exclude competing presenters from a public meeting, whether for reasons of professional courtesy or otherwise. The Port’s position is that the procurement officer did not exclude the competing presenters, but requested that the competing presenters voluntarily excuse themselves. The trial court expressly rejected this contention and made detailed findings of fact. We find that the trial court’s order was supported by substantial, competent evidence that the actions of the Port amounted to a de facto exclusion of the competitors, especially since the “request” was made by an official directly involved with the procurement process.
Even though it accepted the fact that the Authority did not intend to run a “clandestine” process, the Court of Appeal found that the Authority’s breach of the transparency requirements had a material impact on the integrity of the evaluation process:
We reject the Port’s argument that, even if a technical violation of the Sunshine Law did occur, the trial court erred in finding that it required invalidation of the contract awarded as a result of the process. In Town of Palm Beach v. Gradison, 296 So. 2d 473, 477 (Fla. 1974), the supreme court held that the “[m]ere showing that the government in the sunshine law has been violated constitutes an irreparable public injury so that the ordinance is void ab initio.” See *1171 also Spillis Candela & Partners, Inc. v. Centrust Savs. Bank, 535 So. 2d 694 (Fla. 3d DCA 1988) (upholding trial court determination that Dade County Board of Rules and Appeals violated Sunshine Law and invalidating the Board’s resulting recommendation) and Blackford v. School Bd. of Orange County, 375 So. 2d 578 (Fla. 5th DCA 1979) (overturning school board decision to close school when its decision was made outside of public eye).
The Port asserts that these cases are distinguishable because the meetings here were not “clandestine” and because, even if the Port’s practice of requesting competing proposers to remain outside during a competing bid were a violation, it was an innocent, technical one with no prejudice resulting. However, the principle that a Sunshine Law violation renders void a resulting official action does not depend on a finding of intent to violate the law or resulting prejudice. Once the violation is established, prejudice is presumed. See Gradison.
While the Court of Appeal also noted that breaches of the Sunshine Law could potentially be cured in a manner that salvaged the evaluation process, it found that the Authority failed to properly cure its flawed evaluation process:
Although a violation can be remedied by the governmental entity, a “cure” did not occur because the SNC, before whom the competitors were excluded, did not reconvene “in the sunshine” before the contract was awarded and the Port did not conduct a full, open hearing on the competing bidders for the contract, before ratifying the Committee’s recommendations. See generally Tolar v. School Bd. of Liberty County, 398 So. 2d 427 (Fla. 1981). The SNC ranked the bidders on the day of the meeting in which the Sunshine Law violation occurred, November 16, 1992. In this case, unlike Tolar, a separate committee determined the rankings and the Port commissioners ratified their actions. In fact, the trial court expressly found that the commissioners approved the SNC’s rankings the very next day, November 17, 1992. Thereafter, the Port conducted negotiations only with the first ranked company, G.F.C. No further discussions concerning the rankings of the bidders occurred in the subsequent meetings. The trial court correctly concluded that the Port failed to effectuate a cure of the violation by independent action in the sunshine, even though it had the opportunity to do so and was aware of the violation. Compare Monroe County v. Pigeon Key Preservation Foundation, Inc., 647 So. 2d 857 (Fla. 3d DCA 1995); BMZ Corp. v. City of Oakland Park, 415 So. 2d 735 (Fla. 4th DCA 1982).
The Court of Appeal therefore upheld the trial court’s ruling with respect to the breach of the Sunshine Law and invalidated the contract award.
As this case illustrates, Florida statute puts a high premium on the transparency of government evaluations in a public tendering process and breaches of those rules can seriously undermine the validity of any resulting contract award.
