Becker & Poliakoff

Obtaining Public Records and Florida’s Sunshine Laws

Obtaining Public Records and Florida’s Sunshine Laws

A savvy bidder that is interested in following the outcome of an award will monitor the process using Florida’s Public Records and Sunshine Laws as important tools. In addition to having representatives attend meetings of the awarding authority’s boards or commissions and directly voicing opinions at those meetings, bidders can obtain valuable information, including a copy of the bids or proposals submitted by competitors, and attend and obtain recordings of evaluation committee meetings. A summary of the bids submitted which includes price and name of firm may be requested by obtaining a copy of the Bid Tabulation Sheet.

Generally, the Public Records law (Florida Statutes, Chapter 119) provides that bids and proposals are open to public inspection and copying at the time of a notice of a decision or intended decision, or within 10 days after the bid or proposal opening, whichever is earlier. In the event that the agency decides to reject all bids or proposals, there is an exemption in the Public Records Law which permits the agency to maintain such bids or proposals as exempt until a decision on a reissued solicitation has been made.

In the absence of an exemption from disclosure, bidders should procure a copy of their competitor’s bids or proposals to determine whether there are any material irregularities or grounds to challenge an ultimate award, if necessary.

It should also be noted that in response to the threat of terror attack, the Public Records law was amended to provide certain restrictions on the release and dissemination of building plans, blue prints, schematic drawings, etc. If the project involves disclosure of such protected materials, persons receiving such information are required to maintain the confidential – exempt status of the information.

Similarly, the Sunshine Law (Florida Statutes, Section 286.011) requires meetings of public boards, including committees with delegated authority to evaluate bids or proposals, be conducted in meetings that the public can attend. This would include selection committee meetings, and even presentations made by competitors. Depending upon the industry, it may be custom that competitors do not observe the presentation that each other may make to an agency, but that is not required by law. In fact, an award may be overturned by the courts if an agency or selection committee were to preclude members of the public or competitors from remaining in the room during such presentations or the actual deliberations.

The right to attend public meetings should not, however, be confused with the right to communicate with public officials or professional staff. Often times, public agencies will adopt “cones of silence”, which restrict the method by which a bidder can communicate with the agency once the solicitation is advertised. Bidders should find out if there is such a cone of silence in place before communicating with the agency. The solicitation itself may direct bidders to only communicate with certain persons or by certain means. Failure to adhere to this requirement may result in an automatic disqualification.

By obtaining information via the public records and observing the evaluation process, bidders can stay informed on a pending award, and protect themselves in the event a protest becomes necessary.