GENERAL ELECTRIC, APPELLANT,
v.
DEPARTMENT OF TRANSPORTATION AND FLORIDA DRAWBRIDGES, INC., APPELLEES
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General Electric appealed the dismissal of its bid protests for alleged deficient bid bonds. The court reversed, holding that due process requires the contracting agency itself to provide notice of any bond deficiency and an opportunity to cure before dismissing a bid protest, regardless of which statute governs the bond requirement.
The court held that due process requires the contracting agency—not the opposing bidder—to provide the protesting bidder with both notice of a bond deficiency and an opportunity to cure such deficiency before dismissing a bid protest. GE did not receive sufficient notice from the Department itself, so it was entitled to relief regardless of whether the bonds were actually deficient.
[1] A bid protest may not be summarily dismissed due to a deficient bond without providing the protestor with adequate notice and an opportunity to cure the deficiency.
[2] Due process requires that an agency provide notice of a bond deficiency and an opportunity to cure it in bid protest proceedings.
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Join FLexlaw to unlock all legal intelligence“Appellant is correct that notice and an opportunity to cure are required before a bid protest is dismissed solely due to a deficient bond.”
Establishes the core due process requirement that triggered reversal
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Join FLexlaw to unlock all legal intelligenceGeneral Electric filed three bid protests against the Department of Transportation's award of contracts to Florida Drawbridges. With each protest, GE …
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BROWNING, J.
Appellant seeks review of a final order summarily dismissing Appellant’s bid protests because its bid bonds were deficient. We agree with Appellant that Appellant did not have sufficient notice of the deficiency, and was not given a chance to correct any deficiency. Thus, we reverse without deciding whether the bonds were, in fact, deficient.
The dispute began when Appellee Florida Drawbridges was awarded three Department of Transportation (Department) contracts and Appellant filed three formal bid protests. With each protest, Appellant filed a required security bond, listing as principal on the bond “GE Industrial Systems.” Florida Drawbridges, the successful bidder, intervened in the three bid protest proceedings, held before the Division of Administrative Hearings (DOAH). Florida Drawbridges then filed motions for a summary recommended order in each case, on the ground that Appellant failed to list the proper principal on the bonds. After the three eases were consolidated, the ALJ recommended dismissal and the Department followed his recommendation.
On appeal, Appellant argues that it did not receive adequate notice of the deficiency in the bonds and, in the alternative, argues that the bonds were not deficient because GE Industrial Systems is the same entity as Appellant. Appellant is correct that notice and an opportunity to cure are required before a bid protest is dismissed solely due to a deficient bond. ABI Walton Ins. Co. v. Dep’t of Mgmt. Servs., 641 So. 2d 967 (Fla. 1st DCA 1994). Appellees argue that ABI Walton is distinguishable because it interpreted section 287.042(2)(c), Florida Statutes, whereas the instant bonds were posted pursuant to section 337.11(5), Florida Statutes. However, the due process requirements outlined in ABI Walton apply to bid protests filed pursuant to both sections.
The Department argues that Appellant received sufficient notice of the deficiency from the motions for summary dismissal filed by Florida Drawbridges. However, this Court specifically stated in ABI Walton that the agency must give the protestor both notice of a bond deficiency and an opportunity to cure such deficiency. ABI Walton, 641 So. 2d at 968 & 969. Thus, notice in the instant case is insufficient as it did not come from the Department, and such failure cannot be cured by the allegations of Florida Drawbridges’ motions for summary dismissal. Accordingly, Appellant is entitled to relief. REVERSED and REMANDED to the Department for further proceedings consistent with this opinion.
BOOTH and PADOVANO, JJ., concur.