This article is an excerpt from the 2023 edition of The Art of Tendering: A Global Due Diligence Guide.
In its July 2022 decision in Conduent State and Local Solutions, Inc. v. Florida Department of Transportation, the Florida Division of Administrative Hearings voided a contract award after finding that the winning bidder did not meet past experience requirements. The dispute dealt with a Request for Proposals (RFP) for customer relations and quality management services for the Department of Transportation’s toll operations. While the winning prime contractor was a new company and did not possess the minimum ten years’ experience required by the RFP, the Department argued that this requirement could be satisfied by other members of the prime contractor’s bidding team, which included the prime contractor’s affiliates and subcontractors. The judge disagreed. After interpreting the RFP’s convoluted provisions, the judge concluded that the RFP terms did not support the Department’s evaluation decision.
As the judge summarized, the issue turned on the proper interpretation of the RFP definitions of “Proposer” and “Vendor”, which incorporated members of a prime contractor’s bidding team into the meaning of proponent for some but not all purposes:
As far as this case is concerned, however, the most consequential language in the RFP is found in the “Introduction Section,” which starts with an “Invitation” that includes the following paragraph:
[1.] The Department intends to award this Contract to the responsive and responsible Proposer whose proposal is determined to be the most advantageous to the Department.
[2.] After the award, said Proposer will be referred to as the “Vendor.”
[3.] For the purpose of this document, the term “Proposer” means the prime Vendor acting on its own behalf and those individuals, partnerships, firms, or corporations comprising the Proposer team.
[4.] The term “Proposal” means the complete response of the Proposer to the Request for Proposal (RFP), including properly completed forms and supporting documentation.
While the judge noted that the RFP contained sloppy drafting and created unnecessary interpretive confusion, the judge ultimately ruled that the RFP terms were not ambiguous and that the prime contractor had to satisfy the past experience requirements as a stand-alone entity:
To be blunt, the definition of “Proposer” and other relevant language in the RFP was not drafted with the precision and attention to detail that a solicitation of this magnitude calls for. This, regrettably, has created room for arguments about meaning. Sloppily written language, however, is not necessarily ambiguous language. The RFP’s deficiencies, to be sure, require the reader to work harder to ascertain the plain meaning of relevant provisions, but it can be done. The undersigned concludes as a matter of law that, notwithstanding the imprecise draftsmanship on display, the relevant RFP provisions at issue are clear and unambiguous vis-à-vis the issues presented.
Review the four sentences quoted above in paragraph 19. Read carefully, and literally, the first sentence declares the Department’s intent to award the Contract to the “Proposer” who submits the most advantageous proposal. Here, as first used, the term Proposer, which has yet to be defined otherwise, must be given, and is clearly intended to have, its plain and ordinary meaning; that is, until defined differently, the Proposer is not a team, but simply the single company seeking the award of the Contract. We know this for a certainty, because it is undisputed that the Department intends to award the Contract to one entity only, namely the Vendor who will execute, and be exclusively responsible for performing, the Contract.
While the Department argued that the RFP provisions that limited the past experience requirement to the prime contractor were included in error and did not reflect the Department’s intention, the judge rejected this argument, finding that the objective meaning of the RFP terms must prevail over the Department’s unstated subjective intentions and that those terms could not be retroactively amended to reflect those contrary intentions:
The Department asserted at hearing that its use of “the Vendor” in the second paragraph of RFP section 9.1.2 was a mistake. According to the Department, its intent was to accept references relating to any individual or entity within the Proposer Group (even though no single member of such group, by itself, constitutes the “Proposer” pursuant to the “expansive” definition). If that is truly what the Department subjectively meant to communicate, it is certainly not what the Department objectively said. The undersigned cannot re-write the plain language of the RFP to conform to the Department’s subjective intent to say something different from what it clearly wrote.
The judge ultimately concluded that the prime contractor could not rely on other members of its bidding team to satisfy the experience requirement and that if the Department had intended otherwise, it should have clearly stated so in its RFP:
The upshot is that the RFP clearly communicates that the entity which must have been in business for a minimum of ten consecutive years preceding the Proposal submission, and whose ten years’ experience must have been in the relevant business (tolling related customer service operations), is the Vendor a/k/a the Prime Contractor a/k/a the entity that would execute the Contract and thereby become, together with the Department, a party thereto.
What the RFP clearly does not say is that the Prime Contractor itself need not have ten or more years of relevant business experience as long as any other member of the Proposer Group, such as a subcontractor, does. If the Department had intended to diminish the importance of the Prime Contractor’s personal business experience by crediting as equally or more valuable the experiences of entities with whom it will not be under contract, which would be the Department’s prerogative, it could have written the RFP in such a way as to communicate that idea, but it did not.
The judge ruled that the Department awarded the contract to a non-compliant bidder and ordered that the improper award be rescinded.
As this case illustrates, purchasing institutions should be careful in defining their past experience requirements and in clearly stating whether those requirements must be met by the prime contractor or can be satisfied by other members of a bidding team.
