Ditchmen • NUCA of Florida Ditchmen • August 2016 | Page 14

instance, while most public
agencies require the posting
of a protest bond at the time
the formal written protest
is submitted, the Florida
Department of Transportation
requires that the protest bond
be posted when the written
notice of protest is filed. The
amount of the bond for a
specification protest is usually a
fixed amount and not based on
the estimated contract amount.

especially important to carefully
analyze the impact of any
questionable bid specification
as soon as the bid documents
are released. If a bidder
believes that it may have any
impact on the outcome of the
award, it may be prudent to file
a protest and seek clarification
from the agency.
• • •

Consequences
of Failing to
Timely Protest
Specifications
A potential bidder’s failure
to comply with the time
requirements set forth above
waives its right to protest the
specifications. If a bidder
chooses to submit a bid or
proposal rather than contest
the specifications, the bidder
will have waived its right to
initiate such a challenge. This
is true even if it turns out that
the specification in question
gave one or more bidders an
advantage.

Another concern is that
the affected agency will often
respond to a bid protest by
framing it as a specification
protest, rather than a protest
of the evaluation or award
process. Doing so may allow
the agency to dismiss the
protest as untimely without the
need for a formal hearing and
further delay to the solicitation
process. For this reason, it is

14

DITCHMEN • AUGUST 2016

David J. Metcalf
is a partner in
the Tallahassee
office of McRae
& Metcalf, P.A.
He practices
in the areas of
construction,
surety and
business law.

Megan M. Warren
is an associate in
the Tallahassee
office of McRae
& Metcalf, P.A.
She practices
in the areas of
construction and
surety law.