This article is an excerpt from The Art of Tendering: A Global Due Diligence Guide, which is available for purchase.
In its November 2002 decision in Intercoastal Contracting, Inc. v. Collier County School Board, the Florida Division of Administrative Hearings determined that the Collier County School Board improperly allowed a bidder to repair deficiencies in its pricing form after the bid submission deadline, and then improperly accepted that non-compliant bid. The case involved an Invitation to Bid (ITB) for the repair of bleachers at local high school football stadiums. The low bidder, Charron Sports Services, Inc., failed to properly fill out the required pricing form and instead submitted a series of ancillary pricing documents that were not in the format prescribed in the ITB. The School Board performed its own calculations from the auxiliary pricing documents to confirm Charron’s pricing and sought post-bid clarifications from Charron to resolve ambiguities in that submitted pricing.
A competing bidder, Intercoastal Contracting, Inc., challenged the award to Charron, arguing that the School Board engaged in unfair bid repair and then awarded to a non-compliant low bid. The Court agreed that the low bid contained ambiguities that the School Board attempted to repair after the bid deadline:
The evidence presented at the hearing established that the Charron bid was ambiguous. The actions of Ms. Sirko, Mr. Johnson, and Dr. Mitchell demonstrated that they understood the bid was ambiguous, despite their testimony at the hearing. At the bid opening, Mr. Johnson could not tell whether Charron had bid on the alternates because Charron left its proposal form blank. Ms. Sirko later pieced together from the auxiliary pages what she surmised was Charron’s bid on the alternates, but she needed Mr. Johnson to call Charron to confirm her conclusion.
Neither Ms. Sirko nor Mr. Johnson ever reviewed the itemized auxiliary pages of Charron’s bid to make sure Charron was bidding on all the work. After Intercoastal pointed out that Charron’s bid did not include all the items of work specified in the RFP, the School Board sought Dr. Mitchell’s guidance. Dr. Mitchell confirmed that the auxiliary pages in Charron’s bid did not include all the items of work, but maintained that was irrelevant because Charron’s base bid committed it to perform all the work specified in the ITB. However, once again, Charron had to be contacted to confirm this interpretation of its bid.
Intercoastal bid a clear price to perform all the work specified in the ITB. Charron’s prices had to be pieced together from the auxiliary pages in its bid. Because Charron’s auxiliary pages did not include all the work items specified in the ITB, it was unclear whether Charron intended to perform all the work or whether Charron was making a counter-offer to perform certain parts of the work at a reduced price. This ambiguity necessitated post-bid contacts and provided Charron with an opportunity to amend or even withdraw its bid, an opportunity not afforded Intercoastal, which submitted its bid in the prescribed format.
The Court concluded that the School Board breached the procurement rules by allowing Charron an unfair advantage in the bidding process and that this resulted in an invalid contract award:
The facts found above demonstrate that the School Board acted contrary to competition in its efforts to save the nonresponsive, but enticingly low, Charron bid. The ITB specifications clearly defined the scope of the work and the method of bidding, which was to provide prices in the four blanks provided. Filling in the blanks signified a commitment to perform all the work specified in the ITB at the quoted price. Intercoastal submitted a clear bid complying with the instructions and committing it to perform all the work specified in the ITB. Charron submitted an ambiguous bid that appeared to constitute an offer to perform some of the work specified in the ITB. Rather than rejecting Charron’s bid as nonresponsive, the School Board twice allowed Charron to “clarify” its bid, first as to the three alternates, then as to its commitment to perform all the work specified in the ITB. By giving the “right” answers to the School Board’s questions about its ambiguous bid, Charron maintained its position as the apparent winning bidder.
However, these contacts also meant that Charron was given at least two opportunities to withdraw its bid by giving the “wrong” answer to the School Board’s questions. Intercoastal, having submitted a complete and responsive bid, was afforded no opportunity for such second thoughts. Charron was thus provided a clear advantage, contrary to competition and the equal advantage to be afforded all prospective contractors under the competitive bidding process. The School Board’s decision to award the contract for ITB No. 197-3/02 was clearly erroneous, contrary to competition, and arbitrary.
The Court therefore upheld the bid protest and ordered the School Board to revoke the contract award to the non-compliant low bidder.
