A Florida appellate court recently struck down a county’s procurement procedure for noncompliance with state statutes. Engineering Contractor’s Association of South Florida, Inc. vs. Broward County, 789 So.2d 445 (Fla. 4th DCA. 2001). Florida statutes require that road and bridge contracts be awarded to the lowest responsible bidder by competitive bid.
In 1999, Broward County amended its procurement procedures to require a two-step process. First, the county prepares a list of qualified bidders, a "short list," based on factors such as claims history, performance history, debarment, "an unresolved concern," or "any other cause under this code and Florida law for evaluating the responsibility of an offeror." The county publishes a request for letters of interest defining the factors to be considered in the short-listing process. The county staff would review the responses and assign either an "acceptable" or "unacceptable" rating on each of the categories. The second step is to solicit competitive bids from the bidders on the short list.
In the Engineering Contractors case, four road projects were noticed for bidding. Several contractors received "acceptable" ratings on their applications. However, only one contractor made the short list on any one of the four projects. Naturally, that contractor received contracts. The disappointed contractors challenged the award.
Though the trial court upheld the new bidding procedure, the appellate court reversed upon finding the new bidding procedure violated Florida law. Although the short-listing procedure complied with Florida law for most public contracts, Florida law requires road and bridge contracts be awarded to the lowest competent or responsible bidder. Florida law holds that the lowest "responsible" bidder does not necessarily mean the lowest bidder. The statutes permit assessing the honesty and integrity of the bidder. However, under the Broward County procedure, some admittedly responsible contractors did not make the short list. The contract should not have been awarded to the lowest bidder among only those contractors preferred by the selection committee.
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