The Law and Your Business– Public Bidding and the “Cone of Silence”
Christian Lake, Esq., Lindell Farson & Zebouni
A recent case was decided by a Florida Court dealing with a violation of the “cone of silence” as it pertains to bid protests. The Agency for Health Care Administration’s (“AHCA”) procurement process sought vendors to provide AHCA-administered Medicaid plans in Florida. The bidding process was a two-step process with the first step being open bidding for all providers who wished to submit a bid within a particular region. From there, the AHCA would rank the bids based on its own scoring system and extend an “invitation to negotiate” to the top two bids within each region. AHCA would then ultimately select the provider with the best negotiated offer. AHF MCO of Fla., Inc. v. Agency for Health Care Administration.
AF MCO of Florida, Inc. (“MCO”) submitted bids to administer AHCA Medicaid plans within two of the regions opened for bidding by AHCA. Prior to submitting those bids, MCO had been administering other medical plans for AHCA within those two regions. Despite that, AHCA did not extend an invitation to negotiate to MCO for the administration of AHCA’s Medicaid plans. MCO immediately began protesting this decision in the following ways: 1) MCO organized demonstrations to picket AHCA’s offices; 2) MCO reached out to nonprofit groups to write letters of concern about the bidding process to the governor; and 3) MCO ran ads in newspapers challenging the bidding process as run by AHCA.
After taking those actions, MCO also sought to set aside the procurement process via an administrative complaint and argued that AHCA’s scoring process for the bids was flawed. The Court held that MCO could not bring any claim against the bidding/procurement process due to MCO’s failure to abide by the “cone of silence” that exists in Florida for governmental bidding procedures. The “cone of silence” requires that contractors placing bids, or anyone acting on their behalf, have no contact with either the executive branch of the state government or the legislative branch of the state government from the time the solicitation for bids is opened until 72 hours after the agency posts its notice of intended award. The only exception is that a contractor can contact the procurement officer for that bidding, in writing, with any complaints or inquiries. If the cone of silence is ignored or violated, the violating contractor is removed permanently from that particular bidding process.
Here, MCO’s solicitation of contact with the governor’s office, taking out ads for all to see, including governmental officials, and picketing outside of AHCA buildings (which are administrative agency buildings) all were violations of the cone of silence by MCO. As such, MCO was treated as a non-bidder with no ability to challenge the bidding process because there was no chance MCO would be awarded a contract after violating the cone of silence. In this case, even if AHCA had rejected all bids, MCO would have been precluded from submitting any bid upon re-bid. If you find yourself in a situation where you believe you have been unfairly excluded from a procurement, or if you have any other questions about public procurement issues or application of the “cone of silence,” please contact the law offices of Lindell Farson & Zebouni, P.A.