This article is an excerpt from The Art of Tendering: A Global Due Diligence Guide, which is available for purchase.
In its June 2017 decision in JPM Outlook One Limited Partnership v. Florida Housing Finance Corporation, the Florida Division of Administrative Hearings upheld the Florida Housing Finance Corporation’s right to reject a bid that contained the improper form. The case dealt with a $12 million Request for Applications (RFA) for the development of affordable housing. During the pre-bid period, Florida Housing issued an addendum in which it revised a bid submission form. The plaintiff failed to use the revised form and instead submitted its application using the older original form. The bid was rejected and the bidder sued Florida Housing. The Court upheld the rejection based on the use of the wrong form, however:
Petitioners had clear notice that they were required to submit the modified Applicant Certification and Acknowledgement Form. They did not avail themselves of the opportunity to protest the RFA modifications. There is no allegation that they were misled by Florida Housing or that they had no way of knowing they were submitting the wrong form. The relative importance of the new acknowledgement in the modified form may be a matter of argument, but the consequences for failure to submit the proper form were plainly set forth in the effects clause. Florida Housing simply applied the terms of the modified RFA to Petitioners’ applications and correctly deemed them ineligible for funding.
As this case illustrates, purchasing institutions should be careful to ensure they have updated forms in their solicitation documents since mid-process changes to the prescribed forms increase the risk of compliance errors and resulting bid disputes.
