This article is an excerpt from The Art of Tendering: A Global Due Diligence Guide, which is available for purchase.
In its March 2007 decision in Phil’s Expert Tree Service, Inc. v. Broward County School Board, the Florida Division of Administrative Hearings upheld the rejection of a three-year old company for failing to meet the five-year minimum experience requirement set out in the solicitation. The case dealt with a tendering process for a tree-trimming contract. The case turned on whether the five-year prior experience requirement could be met by company personnel so that companies that were in existence for less than five years could still be eligible for award. The Court ruled that the experience had to be established at the company level to meet the requirements of the Request for Proposals (RFP) and that this experience requirement could not be met by simply showing evidence of the prior experience of current employees:
The language at issue——”Bidder must have at least five years experience in tree trimming services”——is neither difficult nor unusual and thus must be understood and applied according to its everyday meaning. As used by ordinary persons in daily discourse, the subject provision, in reference to a corporate bidder, plainly means that the corporation must have been in the tree trimming business for at least five years. Evidently, the School Board wanted to be assured, through the “experience” provision, that a corporate bidder had “been around” for five years or more, trimming trees commercially. This kind of corporate experience is unique to the corporation and, generally speaking, is non-transferable.
The Court ultimately determined that any bidder who was not in the tree-trimming business for at least five years was ineligible for the contract award.
As this case illustrates, purchasing institutions should be careful in how they define and interpret experience requirements, since the distinction between company experience and the collective prior experience of current company staff can create confusion in the evaluation of the experience requirements.
