This article is an excerpt from The Art of Tendering: A Global Due Diligence Guide, which is available for purchase.
In its May 2001 decision in School Food Service Systems, Inc. v. Broward County School Board, the Florida Division of Administrative Hearings overturned the Broward County School Board’s decision to cancel a tendering process over allegedly vague specifications, after finding that those specifications were sufficiently clear to support the Board’s evaluation and award process. The case dealt with an Invitation to Bid (ITB) for the provision of cafeteria goods. The Court summarized the background facts that led to the legal challenge by the bidder, who was initially awarded the contract prior to the cancellation:
In reviewing the issues raised in Sysco’s protest of the recommended award, staff determined that the ITB was fatally flawed due to purportedly defective specifications in the product descriptions of four items out of 186 on which bids were required. Due to these allegedly defective specifications, staff believed that bidders acting in good faith could have offered goods that failed to meet the Board’s needs. On December 1, 2000, a Bid Protest Committee met pursuant to Board rule to consider Sysco’s protest. Staff informed the committee that the allegedly defective specifications were believed to have caused confusion which adversely affected competition. The Board’s staff and counsel recommended to the Bid Protest Committee that the original recommendation to award the contract to School Food be rescinded, that all bids be rejected, and that the contract be re-bid. The Bid Protest Committee considered these matters and voted to approve the actions that staff had recommended. School Food filed a formal written protest concerning the intended rejection of all bids. The Bid Protest Committee met on February 9, 2001, to consider School Food’s protest, and decided, by a two-to-one vote, to stick with the rejection decision. Thereafter, School Food requested that its formal written protest be referred to the Florida Division of Administrative Hearings, which was done.
After performing a detailed analysis of the discrepancies in some of the specified food items, the Court ruled that these irregularities were insufficient to justify the cancellation of the tendering process, particularly since those ambiguities could be reconciled through a proper reading of the rest of the solicitation document:
All of the purported deficiencies in the bid specifications fall squarely within the operation of the ITB’s plain and unambiguous Reconciliation Clause which, to repeat for emphasis, provided as follows:
If there is a conflict between the product description in Column 2 and the approved brands in Column 3, compliance with approved brands shall prevail. (ITB, Section 5.02.)
There is no evidence that the Reconciliation Clause misrepresented the Board’s true intent or was the product of a mistake.
The administrative law judge has determined as a matter of law that the Reconciliation Clause is clear and unambiguous; therefore, as a matter of fact, it manifests the Board’s intent that a Column 2 description must yield to the identification of an approved branded product in Column 3 in the event of conflict between them. By providing in clear terms a straightforward, easily applied, bright-line rule for resolving the very type of conflict that the Board now urges justifies a rejection of all bids, the ITB reasonably ensured that no such ambiguity or uncertainty would imperil the competitive process.
The Court also found that none of the bidders raised concerns over the alleged ambiguities prior to bidding:
No reasonable bidder could possibly have been confused by the unambiguous Reconciliation Clause. All bidders, of course, were entitled to protest the Reconciliation Clause, and any other bid specifications, within 72 hours after receiving the ITB. See Section 120.57(3)(b), Florida Statutes; see also ITB, Section 1.21. None did. If Sysco believed, as Ms. Blaine testified, that it could not bid on certain approved branded products listed in Sequence Nos. 1009, 1036, 1037, and 2010, then its belief was unreasonable. Confusion that is objectively unreasonable in fact, as Sysco’s was, is not evidence of deficiencies in the bid specifications or of a breach in the integrity of the competitive process.
The Court concluded that the Board’s decision to cancel its tendering process over the alleged ambiguity was factually unfounded, illogical, and legally invalid:
In sum, the purported “deficiencies” upon which the Board based its intended decision to reject all bids are not deficiencies in fact. Thus, the Board’s professed reason for starting over — that flaws in Sequence Nos. 1009, 1036, 1037, and 2010 put bidders to the Hobson’s choice of either risking disqualification by bidding on an approved branded product that did not strictly conform to the description in Column 2 or offering a higher-priced product meeting the Column 2 description — is factually unfounded and illogical.
As this case illustrates, evaluators should be careful to properly interpret solicitation documents when conducting an evaluation process. Additionally, any decision to cancel a tendering process should only be made when the deficiencies in a solicitation document justify the cancellation, since flawed cancellation decisions can be overruled by the courts.
