This article is an excerpt from The Art of Tendering: A Global Due Diligence Guide, which is available for purchase.
In its September 2002 decision in All American Companies v. Department of Environmental Protection, the Florida Division of Administrative Hearings ruled that ambiguities in a solicitation document justified the cancellation of a tendering process. The case dealt with an Invitation to Bid (ITB) for the construction of a new concession building, along with alterations to the existing concessions building, at a state park. The Department of Environmental Protection received five bids. Upon opening those bids, it was apparent to Department officials that some bidders were confused about the bidding instructions. The Department decided to proceed based on the lowest base bid and, due to the bidders’ confusion, disregard the price offers on the alternative options. After the Department announced its intention to award on that basis, another bidder filed a legal challenge and the Department decided to cancel and re-tender the opportunity. That decision was also challenged. However, the Court ultimately decided that the decision to cancel and re-tender was not arbitrary but valid, due to the confusion created by ambiguities in the bidding instructions.
While the bid protest was ultimately rejected, this case serves as a good reminder for public institutions to provide clear instructions to bidders to avoid causing unnecessary confusion, which could lead to cancellation and resulting legal challenges.
