Ditchmen • NUCA of Florida Ditchmen • August 2016 | Page 13

provision and seek correction or
clarification from the agency.
Below are some examples of
specifications that would be
subject to challenge through a
specification protest:
•

Participation goals for
women and socially
and economically
disadvantaged individuals;

•

Weight given to criteria an
agency uses to evaluate
proposals;

•

Requirement for an
equipment manufacturer’s
certification;

•

Discrepancy between pay
item quantity listed in plans
and Invitation to Bid; and

•

Agency’s failure to correct a
known quantity error.

The above list is not exhaustive
and there are a myriad of
objections a potential bidder
may have to any given
solicitation.
What is important to ask
yourself when determining
whether a specification protest
is necessary is whether a
term or specification as
currently worded prevents a
potential bidder from properly
responding to a solicitation or
would confer an advantage to
another bidder. If the answer
is “yes,” then a specification
protest may be appropriate.

Requirements
for Bringing a
Specification
Protest
Much like other forms of
bid protests, a specification
protest must follow a strict
timeline. Section 120.57(3) of
the Florida Statutes sets forth
the “procedures applicable to
protests to contract bidding
or award[s]” by state agencies.
Specifically, subsection
120.57(3)(b) provides that

[w]ith respect to a protest of
the terms, conditions, and
specifications contained in
a solicitation, including any
provisions governing the
methods for ranking bids,
proposals, or replies, awarding
contracts, reserving rights
of further negotiation, or
modifying or amending any
contract, the notice of protest
shall be filed in writing within
72 hours after the posting of
the solicitation. The formal
written protest shall be filed
within 10 days after the date
the notice of protest is filed.
(emphasis added). In short,
a potential bidder must file
a notice of protest within 72
hours of the posting of the
solicitation and a formal protest
within 10 days thereafter to
timely initiate a specification
protest. It is crucial that a
potential bidder adhere to
these deadlines because they
are strictly construed and
the agency under ordinary
circumstances does not have
the ability to waive or alter

them. In other words, this is
not a situation where a bidder
can wait and see if it is awarded
the contract before deciding
whether it wants to challenge a
specification.
Although the 72-hour deadline
is definite, when the clock
begins to run may not be
as clear, and there may be
multiple points of entry in a
single solicitation. For instance,
there may be an opportunity
to protest when the initial
solicitation is posted and when
an addendum issued. There
may also be an opportunity
to protest where an agency
should have issued an
addendum, but failed to do so.
The important thing to keep in
mind is that regardless of the
format of the specification, the
72 hours begins to run from
when the particular provision
in question was posted or
should have been posted. For
instance, if there is a flawed
specification in the RFP that
could be challenged, and
another flaw in a subsequently
issued addendum, a bidder
cannot file a protest for both
provisions at the same time if
the time for challenging the
terms of the initial solicitation
has already passed. Moreover,
because the time for the notice
of protest is counted in hours,
not days, it is important to pay
close attention to the exact
time the specification was
posted.

Last, a protest bond will be
required either at the time of
filing the notice of protest or
the formal protest, depending
on the agency involved. For

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