This article is an excerpt from The Art of Tendering: A Global Due Diligence Guide, which is available for purchase.
In its October 2013 decision in Tamco Electric, Inc. v. Pinellas County School Board, the Florida Division of Administrative Hearings upheld the cancellation of a tendering process after the Pinellas County School Board discovered that its solicitation requirements were vague and inconsistent with Florida statute. The case dealt with an Invitation to Bid (ITB) for the removal and replacement of a school public announcement system. The low bidder was rejected for failing to meet the five-year experience requirement. It brought a bid protest challenging that rejection. After considering the merits of the low bidder’s protest, the Board decided to cancel its tendering process due to ambiguities in the experience criteria and due to the fact that the solicitation contained subcontractor disclosure requirements that were inconsistent with Florida statute.
While it found the vague experience criteria to be a minor irregularity that did not justify the cancellation of the process, the Court upheld the Board’s decision to cancel in view of the flawed subcontractor disclosure requirements:
The evidence establishes that Respondent’s decision to reject all bids was based on concerns about ambiguities in the ITB’s verbiage regarding the experience requirements for general contractors and the portion of the ITB governing the disclosure of subcontractors. Petitioner proved that the error in its bid regarding the extent of its professional experience was a technical, nonmaterial irregularity. Had the issue of Petitioner’s level of experience been Petitioner’s only ground of protest, then Petitioner would have undoubtedly prevailed in its initial protest of Respondent’s decision to reject its bid as non- responsive. Cf. Overstreet Paving Co. v. Dep’t of Transp., 608 So. 2d 851 (Fla. 2d DCA 1992)(no public benefit derives from rejecting low bidder for technical deficiency in the absence of unfair competitive advantage).
However, when Petitioner raised the meritorious issue concerning the ITB’s non-compliance with section 255.0515, this cast the ITB in a different light. It has long been established that the policy reasons “implicit in [s]ection 255.0515, [serve to] prevent competitive advantage, insure the quality of the subcontractors, insure public confidence in the bidding process, and encourage future competition.” E.M. Watkins & Co. v. Bd. of Regents, 414 So. 2d 583, 587 (Fla. 1st DCA 1982). These policy objectives were furthered in the present case when Respondent decided to reject all bids. There is nothing fraudulent, arbitrary, illegal or dishonest about Respondent ensuring that its competitive bidding process comports with essential requirements of the law.
While the bid protest was initially launched over what was ultimately ruled to be a minor irregularity in the prior experience criteria, that protest led to the Board’s discovery of more material irregularities regarding subcontractor disclosure rules, which ultimately justified the cancellation of the entire tendering process.
