1st DCA Ruling in ATT Bid Protest Case

Late last week the 1st DCA issued its ruling in the major major AT&T bid protest case that we had mention on the flbidprotest.com blog.

The case affirmed the award to a subsidiary of Harris Corporation, finding that the statement of work was not a responsiveness checklist, so a bid not meeting the statement of work could still be responsive. It also affirmed the agency ability to materially change the scope of the procurement during the ITN negotiations.

What is most interesting, however, is a clarification of when a protest has to be filed. It clarified that a challenge to how the agency changed the criteria during negotiations did not have to be filed as a spec challenge to the ability to negotiate, and also there is not need to protest at the notice of intent to negotiate stage, a protest will still be available at the notice of intent to award posting, and responsiveness can be raised at that time, no waiver has occurred.

On a final note, the court also stated

We affirm the Final Order regarding the Department’s ability to make changes to the Statement of Work during negotiations. It is worth noting that our affirmance rests on the record before us and our determination that AT&T was not harmed by the Department’s actions here. We do find compelling AT&T’s argument that such action has a potential chilling effect on third parties who choose
not to reply to an ITN upon the belief they cannot meet the ITN specifications as written. As those parties are not before us seeking relief, those concerns are left for another day.
This is a real and troubling issue. Sometimes a client has told me that they have not responded to an ITN, because, they could not meet the stated requirements, and then later it turns out that specific requirements were negotiated away, and they could have satisfied the actual contractual requirements. Now the question is what is the point of entry for that kind of a challenge? One often can’t tell until the final contract is revealed.
Appellate cases on bid protests are rare, so every case is closely studied, and this case is rich with possibilities.

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