This article is an excerpt from The Art of Tendering: A Global Due Diligence Guide, which is available for purchase.
In its March 1997 decision in Silver Express Company v. Miami-Dade Community College, the Florida Third Circuit Court of Appeal granted an injunction to stop a contract award due to a flawed process that breached the Florida Sunshine Law evaluation transparency rules. The case dealt with a Request for Proposals (RFP) for flight training services. The Court of Appeal summarized the background context, in which the Miami-Dade Community College struck an ad hoc evaluation committee to screen proposals, as follows:
Silver Express Company, plaintiff below, appeals the denial of its motion for temporary injunction seeking to prohibit the District Board of Trustees of Miami-Dade Community College [College] from awarding a two-year contract to Husta International Aviation, Inc. [Husta] and barring the College and Husta from further performance under a temporary contract. Finding that the College violated section 286.011, Florida Statutes (1995), popularly known as the “Government in the Sunshine Law” [Sunshine Law], we reverse the denial of the temporary injunction as it pertains to the two-year contract and affirm the denial as to the temporary contract.
Silver Express Company’s action arises out of the College’s request for proposals for flight training services at Kendall-Tamiami Airport. Silver Express, the then-incumbent flight training provider, submitted a proposal in response to the College’s advertised request, as did others including Husta. The College’s purchasing director appointed a committee composed of College staff, as well as one outside individual, to advise and assist her in evaluating the various proposals. The committee met to conduct its evaluation of the responses, doing so without notice to the public, and voted to recommend to the purchasing director that a two-year contract commencing January 1, 1996, be awarded to Husta.
The Court of Appeal determined that the ad hoc evaluation committee was subject to the Sunshine Law requirements:
First, we must determine if the purchasing director’s committee is subject to the Sunshine Law,2 for if it is, its failure to give notice of its selection meeting and to open it to the public renders the actions taken at the meeting (ranking the proposals) void ab initio. Town of Palm Beach v. Gradison, 296 So.2d 473 (Fla.1974).
The answer lies in what effect the committee’s actions had on the College’s selection process. The record reflects that the committee’s function was to weed through the various proposals, to determine which were acceptable and to rank them accordingly. In other words, the committee’s action helped to crystalize the decision to be made by the College. This crystallization precluded Silver Express (because of its third-place ranking) from its administrative challenge to Husta’s first-ranked proposal, and resulted in the College’s selection of Husta’s proposal on a “temporary” basis. It appears plainly from the record that Husta would not have received the temporary contract in the absence of the evaluation committee’s high ranking of Husta’s two-year proposal. Governmental advisory committees which have offered up structured recommendations such as here involved-at least those recommendations which eliminate opportunities for alternative choices by the final authority, or which rank applications for the final authority-have been determined to be agencies governed by the Sunshine Law. Town of Palm Beach v. Gradison; Krause v. Reno, 366 So.2d 1244 (Fla. 3d DCA 1979).
In Spillis Candela & Partners, Inc. v. Centrust Savings Bank, 535 So.2d 694 (Fla. 3d DCA 1988), we stated:
“The law is quite clear. An ad hoc advisory board, even if its power is limited to making recommendations to a public agency and even if it possesses no authority to bind the agency in any way, is subject to the Sunshine Law. The committee here, made a ruling affecting the decision-making process and it was of significance. As a result, it was improper for the committee to reach its recommendation in private since that constituted a violation of the Sunshine Law.”
While the Court of Appeal upheld the shorter-term contract awarded under the RFP, in view of the adverse impact that its cancellation would have on existing students, it determined that the evaluation committee’s breach of the Sunshine Law constituted an irreparable public injury that justified granting an injunction against the longer-term contract that was awarded under the RFP:
The College committee’s violation of the Sunshine Law constitutes an irreparable public injury, Town of Palm Beach v. Gradison, the only remedy for which is to enjoin the violator from acting on the decisions made out of the sunshine. As the advocate for the public’s interest in securing open government, Silver Express was thus entitled to obtain injunctive relief pending the trial court’s final determination of the case so as to maintain the status quo. As a consequence, the trial court erred in not temporarily enjoining the College and Husta from entering into the two-year contract based on the ranking established by the committee out of the sunshine.
We do find, however, that the College’s temporary contract with Husta for flight training services should not be enjoined at this time. Numerous students are presently in the training process and their interests should be weighed in the balance. Upsetting their educational schedules would not be in the public interest and we decline to do so. For the foregoing reasons, we reverse in part the order denying Silver Express’s motion for temporary injunction and remand for the entry of an order enjoining the College from entering into a two-year contract based on the ranking established at the meeting held in violation of the Sunshine Law.
As this case illustrates, the failure to follow procedural due process can have a significant adverse impact on the defensibility of a government contract award decision. Evaluation committees should therefore be careful to follow proper evaluation procedures to better ensure the legal validity of their contract awards.
