Florida Senate - 2018 SB 544 By Senator Brandes 24-00618-18 2018544__ 1 A bill to be entitled 2 An act relating to procurement procedures; amending s. 3 120.57, F.S.; specifying the applicability of 4 procedures for the resolution of protests arising from 5 the contract solicitation or award process for certain 6 procurements by specified transportation, expressway, 7 and bridge authorities; providing an effective date. 8 9 Be It Enacted by the Legislature of the State of Florida: 10 11 Section 1. Subsection (3) of section 120.57, Florida 12 Statutes, is amended to read: 13 120.57 Additional procedures for particular cases.— 14 (3) ADDITIONAL PROCEDURES APPLICABLE TO PROTESTS TO 15 CONTRACT SOLICITATION OR AWARD.—Agencies subject to this chapter 16 or an entity created under chapter 343, chapter 348, or chapter 17 349 when required by this subsection shall use the uniform rules 18 of procedure, which provide procedures for the resolution of 19 protests arising from the contract solicitation or award 20 process. Such rules shall at least provide that: 21 (a) The agency shall provide notice of a decision or 22 intended decision concerning a solicitation, contract award, or 23 exceptional purchase by electronic posting. This notice shall 24 contain the following statement: “Failure to file a protest 25 within the time prescribed in section 120.57(3), Florida 26 Statutes, or failure to post the bond or other security required 27 by law within the time allowed for filing a bond shall 28 constitute a waiver of proceedings under chapter 120, Florida 29 Statutes.” 30 (b) Any person who is adversely affected by the agency 31 decision or intended decision shall file with the agency a 32 notice of protest in writing within 72 hours after the posting 33 of the notice of decision or intended decision. With respect to 34 a protest of the terms, conditions, and specifications contained 35 in a solicitation, including any provisions governing the 36 methods for ranking bids, proposals, or replies, awarding 37 contracts, reserving rights of further negotiation, or modifying 38 or amending any contract, the notice of protest shall be filed 39 in writing within 72 hours after the posting of the 40 solicitation. The formal written protest shall be filed within 41 10 days after the date the notice of protest is filed. Failure 42 to file a notice of protest or failure to file a formal written 43 protest shall constitute a waiver of proceedings under this 44 chapter. The formal written protest shall state with 45 particularity the facts and law upon which the protest is based. 46 Saturdays, Sundays, and state holidays shall be excluded in the 47 computation of the 72-hour time periods provided by this 48 paragraph. 49 (c) Upon receipt of the formal written protest that has 50 been timely filed, the agency shall stop the solicitation or 51 contract award process until the subject of the protest is 52 resolved by final agency action, unless the agency head sets 53 forth in writing particular facts and circumstances which 54 require the continuance of the solicitation or contract award 55 process without delay in order to avoid an immediate and serious 56 danger to the public health, safety, or welfare. 57 (d)1. The agency shall provide an opportunity to resolve 58 the protest by mutual agreement between the parties within 7 59 days, excluding Saturdays, Sundays, and state holidays, after 60 receipt of a formal written protest. 61 2. If the subject of a protest is not resolved by mutual 62 agreement within 7 days, excluding Saturdays, Sundays, and state 63 holidays, after receipt of the formal written protest, and if 64 there is no disputed issue of material fact, an informal 65 proceeding shall be conducted pursuant to subsection (2) and 66 applicable agency rules before a person whose qualifications 67 have been prescribed by rules of the agency. 68 3. If the subject of a protest is not resolved by mutual 69 agreement within 7 days, excluding Saturdays, Sundays, and state 70 holidays, after receipt of the formal written protest, and if 71 there is a disputed issue of material fact, the agency shall 72 refer the protest to the division by electronic means through 73 the division’s website for proceedings under subsection (1). 74 (e) Upon receipt of a formal written protest referred 75 pursuant to this subsection, the director of the division shall 76 expedite the hearing and assign an administrative law judge who 77 shall commence a hearing within 30 days after the receipt of the 78 formal written protest by the division and enter a recommended 79 order within 30 days after the hearing or within 30 days after 80 receipt of the hearing transcript by the administrative law 81 judge, whichever is later. Each party shall be allowed 10 days 82 in which to submit written exceptions to the recommended order. 83 A final order shall be entered by the agency within 30 days of 84 the entry of a recommended order. The provisions of this 85 paragraph may be waived upon stipulation by all parties. 86 (f) In a protest to an invitation to bid or request for 87 proposals procurement, no submissions made after the bid or 88 proposal opening which amend or supplement the bid or proposal 89 shall be considered. In a protest to an invitation to negotiate 90 procurement, no submissions made after the agency announces its 91 intent to award a contract, reject all replies, or withdraw the 92 solicitation which amend or supplement the reply shall be 93 considered. Unless otherwise provided by statute, the burden of 94 proof shall rest with the party protesting the proposed agency 95 action. In a competitive-procurement protest, other than a 96 rejection of all bids, proposals, or replies, the administrative 97 law judge shall conduct a de novo proceeding to determine 98 whether the agency’s proposed action is contrary to the agency’s 99 governing statutes, the agency’s rules or policies, or the 100 solicitation specifications. The standard of proof for such 101 proceedings shall be whether the proposed agency action was 102 clearly erroneous, contrary to competition, arbitrary, or 103 capricious. In any bid-protest proceeding contesting an intended 104 agency action to reject all bids, proposals, or replies, the 105 standard of review by an administrative law judge shall be 106 whether the agency’s intended action is illegal, arbitrary, 107 dishonest, or fraudulent. 108 109(g)For purposes of this subsection, the definitions in s. 110 287.012 apply. This subsection applies to any procurement by an 111 entity created under chapter 343, chapter 348, or chapter 349 112 which exceeds the CATEGORY FIVE threshold amount provided in s. 113 287.017 or if the term of the procurement, including the number 114 of days specified in the initial contract and the number of days 115 specified in any authorized contract extension or renewal, 116 exceeds 365 days. 117 Section 2. This act shall take effect July 1, 2018.