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.