Florida

Key Agency(ies):  

• The Department of Management Services (DMS), specifically the Division of State Purchasing within DMS, is responsible for contracting equipment and supplies for the State of Florida.
• Other agencies (i.e., Department of Transportation, etc.) have their own procurement rules for specific programs.
• Local governments may have their own procurement authorities and procedures, sometimes governed by state statute, sometimes by local ordinance.

Key Statute:

• Purchasing is governed by the Florida Statutes, Title XIX, Chapter 287 – Procurement of Personal Property and Services.
• Title X, Chapter 120, Section 57 (Administrative Procedures Act) governs bid protests.
• Consultants’ Competitive Negotiations Act (CCNA) Fla. Stat. § 287.055  governs professional services procurements.
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Key Regulations:

• Purchasing is governed by Florida Administrative Code, specifically FAC § 60A-1.
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Procurement Types/Highlights:

• The government of Florida procures property or services through a “competitive solicitation,” which will generally be one of three types:
• An Invitation to Bid (ITB) – Fla. Stat. § 287.057(1)(a)
• A Request for Proposal (RFP) – Fla. Stat. § 287.057(1)(b)
• An Invitation to Negotiate (ITN) – Fla. Stat. § 287.057(1)(c)
• Unique to Florida/Ch. 287 (see “Interesting/Distinctions” Section for more information).
• Agencies may only use an ITN if using an ITB or RFP is not practicable.
• Emergency purchases and single-source procurements are exceptions to competitive solicitation (Fla. Stat. § 287.057(3)).
• State term contracts are indefinite quantity contracts used by agencies and eligible users.
• Professional Services (architecture, engineering, etc.) are governed by CCNA and are not price-based.

Bid Protests:

Regs Governing Bid Protests:

• Florida Statutes, Title X, Chapter 120, Section 57 – Administrative Procedure Act (Additional Procedures for Particular Cases)
• Fla. Admin. Code R. § 28-110.002(2)
• Fla. Admin. Code R. § 60A-1.021

Eligible Protesters:

• Only those who have been “adversely affected” by the agency’s “decision or intended decision.”
• “Any person who is adversely affected by the agency decision or intended decision shall file with the agency a notice to protest in writing ...” §120.57(3)(b)
• Interpreted as those whose substantial interests are affected by the agency’s decision.

Timeliness Rules:

• Under Ch. 120, protesters have 72 hours (excluding weekends and holidays) to file a notice of intent to protest once the agency “electronically posts” a “decision or intended decision” on Florida’s “Vendor Bid System.” “Decision or intended decision” includes the following:
• A solicitation, including addenda;
• A decision to make a sole source award;
• A decision to reject an offer or all offers; and
• An award or intended award.
• The formal written protest shall be filed within 10 days after the date the notice of protest is filed.

Protest Process:

• Upon timely receipt of a formal written protest, the agency must stop the solicitation or contract award process.
• Exception: The agency head may allow the process to continue only if they provide a written justification showing that delay would cause immediate and serious danger to public health, safety, or welfare.
• The agency must offer an opportunity to resolve the protest by mutual agreement within seven days (excluding weekends and state holidays) after receiving the protest.
• If no resolution is reached within seven days, and there is no disputed material fact in the protest, then the agency must conduct an informal proceeding under Fla. Stat. § 120.57(2), in accordance with agency rules, and issue a final order based on the written record.
• If no resolution is reached within seven days, and the protest involves disputed issues of material fact, the agency must refer the matter to the Division of Administrative Hearings (DOAH) for a formal proceeding under Fla. Stat. 120.57(1), where an administrative law judge conducts an evidentiary hearing and issues a recommended order for agency action.
• Division Hearing Process (only where disputed material fact exists):
• Upon referral, the director of the DOAH must expedite the hearing.
• An administrative law judge (ALJ) is assigned and must:
• Start the hearing within 30 days of receiving the protest.
• Issue a recommended order within 30 days after the hearing or receiving the transcript (whichever is later)
• Each party has 10 days to submit written exceptions to the recommended order.
• The agency must issue a final order within 30 days of the recommended order.
• These timelines may be waived if all parties agree.

Appeals:

• Once the agency enters a final order, there is no further administrative review within the agency or within DOAH.
• Final orders issued by agencies in bid protests may be appealed to a Florida district court of appeal. The appeal is governed by the Florida Administrative Procedure Act, and the reviewing court examines whether the agency’s action was supported by competent substantial evidence and complied with the law.

Claims: Florida does not have a general claims settlement statute; however, some agencies have their own specific procedures for pursuing such action. See Fla. Stat. § 337.221 Claims Settlement Process – Department of Transportation)

Suspension & Debarment: Vendors who default on state contracts or repeatedly fail to perform may be suspended from doing business with Florida agencies under Fla. Stat. § 287.133, Fla. Stat. § 128.134, and Rule 60A-1.006.

• Suspension grounds include:
  • Contract default.
  • Repeated poor performance.
  • Termination for cause.
  • Affiliates may also be suspended if they rely on the defaulting vendor.
• The process for suspension is as follows:
  • Agencies report issues to the Department of Management Services (DMS).
  • DMS reviews and, if warranted, notifies the vendor of intent to suspend and offers a hearing.
  • If no hearing is requested within 21 days, the vendor is placed on the suspended vendor list.
• Reinstatement process:
  • After one year, vendors may petition for removal from the suspended vendor list.
  • DMS will consider factors like corrective action, cooperation, quality controls, and public interest.
  • If the petition is denied, vendors must wait nine months to reapply unless DMS initiates earlier view.
• There are also other agency-specific guidelines for suspension/debarment. See Stat. § 337.16 for Florida Department of Transportation Contractors.

Interesting/Distinctions: 

• Florida has a restricted period by which every solicitation must include a provision attesting that respondents may not contact any employee of the soliciting agency except the procurement officer between the release of the solicitation and the end of the 72-hour period following the agency posting the notice of intended award. Fla. Stat. § 287.057(25).
• An invitation to negotiate (ITN) is a unique procurement vehicle under Florida law.
  • The award is given to the responsive, responsible offeror whose offer provides the best value based on price and other factors, as per the ITN’s selection criteria.
  • Award is to be made to an offeror the agency conducted negotiations with, and agencies select offerors for negotiation based on state evaluation criteria.
  • Statute is silent as to whether the ITN must state the relative importance of the initial evaluation criteria or final selection criteria.
  • Gives agencies maximum discretion in selecting awardee(s).
  • Agency may only use an ITN if using ITB or RFP is not practicable.
• Contracts for professional services have a separate set of rules and are governed by the Florida Consultants Competitive Negotiations Act (CCNA).