16-002054BID Peavy &Amp; Son Construction Co., Inc. vs. Department Of Management Services Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Monday, May 2, 2016.

Pursuant to Section 120.57(3)(b ), Florida Statutes, a protest to the terms, conditions, and

specifications contained in a solicitation, including the provisions governing the methods for

ranking bids, proposals or replies, awarding contracts, reserving rights of further negotiation, or

modifyin g or amending any contract must be filed within 72 hours after the posting of the

solicitation.

The Department subsequently filed a Motion to Dismiss the Petitioner's Formal Written

Protest stating that the protest challenges the terms, conditions, and specifications contained in

the Advertisement and bid documents for the project and is thus an untimely specifications

challenge .

The purpose of a solicitation or specifications challenge is to allow an agency to correct

or clarify plans and specifications prior to accepting bids or replies to save expense and to assure

fair competition. Optiplan, Inc. v. Sch. Bd. ofBroward County, 710 So. 2d 569, 572 (Fla. 4th

DCA 1 998); Capeletti Bros., Inc. v. Dept. ofTransportation. 499 So. 2d 855 (Fla. 1st DCA

1986).

Even where a vendor presents its protest as challenging an intended award, if the

substance ofthe challenge is to a solicitation's terms, conditions, or specifications, the protest

must be brought within 72 hours of th e solicitation's posting or the right to protest is waived.

See, e.g., Consultech of Jacksonville, Inc. v. Dep't ofHealth, 876 So. 2d 731,734 (Fla. 1st DCA

2004) (holding vendor waived right to challenge agency's weighting of cost proposals as vendor

failed to timely file specifications protest); Optiplan, Inc. v. Sch. Bd. ofBroward County, 710

So. 2d 569, 572 (Fla. 4th DCA 1998) (holding vendor waived right to challenge evaluation

criteria as being biased and unreliable as vendor failed to timely file specifications protest).

As stated in the ALJ's Orde r, the Petitioner's Protest is "untimely because it failed to

comply with the requirements of section 120.57(3)(b). Here, the Petitioner has waived its right

to challen ge the terms, conditions, and specifications set forth in the Advertisement by it s failure

to timely challenge the same pursuant to Section 120.57(3)(b), Florida Statutes.

Having considered the ALJ's Order, and the applicable law, it is concluded tha t the

recommendation of the ALJ is correct.

ORDERED AND ADJUDGED:

A. The Order Closing File and Relinquishing Jurisdiction is adopted in its e ntirety

and is incorporated herein by reference.

B. The Formal Written Protest filed by the Petitioner is dismissed with prejudice for

untimelines s.

DONE and ORDERED this 12th day of May 2016.

CHAD to gency Secretary

Department of Management Services

4050 Esplanade Way

Tallahassee, FL 32399-0950

NOTICE OF RIGHT TO APPEAL

Unless expressly waived by a party such as in a stipulation or in other similar forms of

settlement, any party substantially affected by this final order may seek judicial review by filing

an original notice of appeal with th e agency clerk of the department of management services, and

a copy, accompanied by filing fees prescribed by law, with the clerk of the appropriate district

court of appeal. The notice of appeal must be filed within thirty (30) days of rendition of this

order, in accordance with Rule 9.110, Florida Rules of Appellate Procedure, and Section 120.68,

Florida Statutes.

Certificate of Clerk:

Filed in the Office of the Agency

Clerk of the Department of Management

Services n this 13th day of 201 .

Copies Furnished To:

Christopher T. McRae, Esq.

McRae and Metcalf, P .A.

2612 Centennial Place

Tallahassee, FL 32308

Susan Dawson,

Assistant General Counsel

Department ofManagement Services

4050 Esplanade Way, Ste. 160

Tallahassee, FL 32399