Chapter title is being amended to include the term “contract solicitation or award.” Rule 28-110.002 is being amended to clarify definitions of “contract procurement process,” “decisions or intended decision,” and “competitive solicitation.” “...

ADMINISTRATION COMMISSION
Departmental

RULE NO: RULE TITLE
28-110: BID PROTESTS
28-110.002: Definitions
28-110.003: Notice of Protest
28-110.004: Formal Written Protest
28-110.005: Bond
PURPOSE AND EFFECT: Chapter title is being amended to include the term “contract solicitation or award.” Rule 28-110.002 is being amended to clarify definitions of “contract procurement process,” “decisions or intended decision,” and “competitive solicitation.” “Electronic posting” is being added. Rule 28-110.003 is being amended to clarify that notice of protest must be received by the agency before the 72 hour period from electronic posting expires. Rule 28-110.004 is amended to clarify language. Rule 28-110.005 is amended to clarify language and delete obsolete term.
SUMMARY: Chapter title is being amended to include the term “contract solicitation or award.” Rule 28-110.002 is being amended to clarify definitions of “contract procurement process,” “decisions or intended decision,” and “competitive solicitation.” “Electronic posting” is being added. Rule 28-110.003 is being amended to clarify that notice of protest must be received by the agency before the 72 hour period from electronic posting expires. Rule 28-110.004 is amended to clarify language. Rule 28-110.005 is amended to clarify language and delete obsolete term.
SUMMARY OF ESTIMATED REGULATORY COSTS: No Statement of Estimated Regulatory Cost was prepared.
Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.
SPECIFIC AUTHORITY: 120.54(5)(a), (b) FS.
LAW IMPLEMENTED: 120.57(3), 624.425(1) FS.
IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE HELD AT THE DATE,TIME AND PLACE SHOWN BELOW(IF NOT REQUESTED, THIS HEARING WILL NOT BE HELD):
TIME AND DATE: 9:00 AM, Friday, December 15, 2006
PLACE: Room 2103, The Capitol, Tallahassee, Florida 32399-0001
Pursuant to the provisions of the Americans with Disabilities Act, any person requiring special accommodations to participate in this workshop/meeting is asked to advise the agency at least two days before the workshop/meeting by contacting: Barbara Leighty, Senior Policy Analyst, telephone [phone], Administration Commission, The Capitol, Room 1801, Tallahassee, Florida 32399-0001. If you are hearing or speech impaired, please contact the agency using the Florida Relay Service, 1(800)955-8771 (TDD) or 1(800)955-8770 (Voice).
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Barbara Leighty, Senior Policy Analyst, telephone [phone], or Gladys Perez, General Counsel, telephone [phone], Administration Commission, The Capitol, Room 1801, Tallahassee, Florida 32399-0001.

THE FULL TEXT OF THE PROPOSED RULE IS:

CHAPTER 28-110 CONTRACT SOLICITATION OR AWARD BID PROTESTS

 

 

28-110.002 Definitions.

For purposes of this subchapter, the following terms mean:

(1) “Contract procurement process” has the same meaning as “contract solicitation or award bidding process” as used in Section 120.57(3), F.S. This phase includes procurements by invitation to bid (ITB), request for proposal (RFP), or invitation to negotiate (ITN), as each is defined in Section 287.012, F.S., approval of a single source procurement, as defined in Section 287.057(5)(c), F.S., or other solicitation documents as permitted by law. approval and negotiation approval.

(2) “Decision or intended decision” means:

(a) The contents of a solicitation an ITB or an RFP or other specifications, including addenda;

(b) A determination that a specified procurement can be made only from a single source;

(c) Rejection of a Approval of procurement by negotiation; response or all responses to a solicitation; or

(d) Rejection of a bid or proposal, or all bids or proposals, or a request to approve a single source or negotiation; or

(d)(e) Intention to award a contract as indicated by a posted solicitation bid or proposal tabulation or other written notice.

(3) “Competitive solicitation” or “solicitation” shall have the meaning ascribed in Section 287.012(7), F.S.For purposes of this chapter, “electronic transmissions” permitted by Rule 28-106.104, F.A.C., are limited to facsimile transmissions which appear legibly on paper at the place of filing.

(4)  “Electronic posting” shall have the meaning ascribed in Section 287.012(11), F.S.

Specific Authority 120.54(5)(a), (b) FS. Law Implemented 120.57(3) FS. History–New 4-1-97, Amended __________.

 

 

28-110.003 Notice of Protest.

(1) A notice of protest shall be addressed to the office that issued the solicitation ITB or RFP or made any other decision that is intended to be protested; shall identify the solicitation procurement by number and title or any other language that will enable the agency to identify it; and shall state that the person intends to protest the decision. If a bond is required, it shall should not be filed with the notice unless otherwise required provided by law.

(2) The notice must be actually received by the agency before the 72-hour period expires. The notice should be filed at the place designated by the procurement solicitation or, if no such place is designated, the notice should be filed either with the office that issued the solicitation or with the agency clerk.

(2)(3) A notice of protest shall should not be filed before the 72-hour period begins. The 72-hour period begins upon electronic posting of a decision or intended decision. The notice of protest must be received by the agency before the 72-hour period expires. The notice of protest must be filed with the agency clerk unless otherwise designated by the solicitation. receipt of a copy of the ITB or RFP; when notice of a single source approval or disapproval or negotiation approval or disapproval is posted, or

otherwise received if not posted; when a bid or proposal tabulation is posted; or when notice is otherwise received if not posted.

(3)( 4) The 72-hour period is not extended by service of the notice of protest by mail.

 

Specific Authority 120.54(5)(a), (b) FS. Law Implemented 120.57(3) FS. History–New 4-1-97, Amended __________.

 

 

28-110.004 Formal Written Protest.

(1) The “formal written protest” required by Section 120.57(3)(b), F.S., is a petition that states with particularity the facts and law upon which the protest is based.,  The formal written protest shall contains the information specified Section 120.54(5)(b)4, F.S., and in subsection 28-106.201(2), F.A.C., and is substantially in the form set out in subsection (2) below. If the formal written protest is filed in proper form within the 72-hour period for filing a notice of protest, the formal written protest will also constitute the notice of protest, and all time limits applicable to a notice of protest., Thereafter, and all time limits applicable to a notice of protest are waived and  all time limits relative to formal written protests apply.

(2) No change.

(3) No change.

Specific Authority 120.54(5)(a), (b) FS. Law Implemented 120.57(3) FS. History–New 4-1-97, Amended __________.

 

 

28-110.005 Bond.

(1) Bid protest bonds are required by Section 287.042(2)(c), F.S., for procurements under Chapter 287 (commodities, contractual services, professional services and insurance) and by Section 255.25(3)(c), F.S., for procurements of leases of space in privately owned buildings. Bonds are not required for protests involving building construction projects undertaken pursuant to Chapter 255, except that Section 255.0516, F.S., authorizes school boards, community college boards of trustees and a state university board of trustees the Board of Regents to require bonds under some circumstances. Bonds are also required also by Section 337.11(5)(a), F.S., for certain procurements by the Department of Transportation.

(2) Bonds required by Section 337.11(5)(a), F.S., must be filed with the notice of protest. Other bonds are not to be filed with the notice of protest, but must be filed with the formal written protest or within the 10-day period allowed for filing the formalwritten protest. The bond must accompany a protest filed pursuant to Section 24.109(2)(a), F.S. A bond can be in substantially the following form:

STATE OF FLORIDA ADMINISTRATION COMMISSION PROCUREMENT PROTEST BOND

Bond Number: _________

Contract Number: _________

KNOW ALL PERSONS BY THESE PRESENTS:

That we, _________ a (mark one) [ ] corporation, [ ] partnership, [ ] proprietorship, organized and existing under the laws of

the State of _________, and having its principal place of business at _________, as PRINCIPAL; and _________, a surety company, organized under the laws of the State of _________, and duly authorized to do business in the State of Florida, whose principal place of business is, as SURETY, are held and firmly bound unto the STATE OF FLORIDA, (Agency), as OBLIGEE, in the amount of $_________ for the payment of which sum we, as Principal and Surety, bind ourselves, our heirs, personal representatives, successors and assigns, jointly and severally.

THIS BOND is issued under the provisions of                     Section 287.042(2)(c), Florida Statutes. The above-named Principal has initiated an administrative protest regarding the Obligee’s decision or intended decision pertaining to (mark one) [ ] Bid Number _________[ ] an agency’s request for approval of an exceptional purchase of _________ submitted by _________. Said protest is conditioned upon the posting of a bond at the time of filing the formal written protest.

NOW, THEREFORE, the condition of this Bond is that if the Principal, after the administrative hearing process and/or any appellate court proceedings regarding the protest, shall satisfy all costs and charges allowed by final order and/or judgment, and

interest thereon, in the event the Obligee prevails, then the obligation shall be null and void; otherwise it shall remain in full force and effect.

The Obligee may bring an action in a court of competent jurisdiction on this bond for the amount of such liability, including all costs and attorneys’ fees.

PRINCIPAL: ____________________________

BY: ____________________________

Title: ____________________________ (CORPORATE SEAL)

ATTEST:____________________________

____________________________

SURETY: ____________________________

BY: ____________________________

Title: ____________________________ (CORPORATE SEAL)

Florida Resident Agent: ____________________________

(Note: Power of Attorney showing authority of Surety’s agent or Attorney in Fact must be attached).

Bonds must be countersigned by an agent licensed in Florida a Florida resident agent. Section 287.042(2)(c), F.S., authorizes a cashier’s check or money order in lieu of a bond, for procurements governed by Chapter 287, F.S.

(3) – (4) No change.

Specific Authority 120.54(5)(a), (b) FS. Law Implemented 120.57(3), 624.425(1) FS. History–New 4-1-97, Joint Administrative Procedures Committee Objection Filed – See FAW Vol. 24, No. 20, May 15, 1998, Amended __________.

NAME OF PERSON ORIGINATING PROPOSED RULE: Teresa Tinker, Administration Commission, Room 1801, The Capitol, Tallahassee, Florida 32399-0001
NAME OF SUPERVISOR OR PERSON WHO APPROVED THE PROPOSED RULE: Administration Commission
DATE PROPOSED RULE APPROVED BY AGENCY HEAD: November 14, 2006
DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAW: September 1, 2006