SPOTLIGHT: The Cone of Silence and Why You Shouldn’t Violate It

SPOTLIGHT: The Cone of Silence and Why You Shouldn’t Violate It

Today I’m spotlighting the “cone of silence” restrictions applicable to Florida solicitations. I’ll break down the cone and explain how to prevent your bid from being thrown out for violating the rules. I’ll then review a real case I handled so you can see what it looks like in practice. After reading this Spotlight you should have a working understanding of the cone of silence and how to avoid violating it.

What Is the Cone of Silence?

The term “cone of silence” refers to the restrictions found in section 287.057(25), Florida Statutes. It’s a general term used to describe the rules preventing bidders, or anyone acting on their behalf, from attempting to influence an agency procurement decision after the solicitation is posted. That’s an oversimplification, but it captures the spirit behind the restriction. In short, when the bid is active you can only communicate in writing with the procurement officer or else your bid can be thrown out.

Let’s take a look at the wording of the statute:
(25) Each solicitation for the procurement of commodities or contractual services shall include the following provision: “Respondents to this solicitation or persons acting on their behalf may not contact, between the release of the solicitation and the end of the 72-hour period following the agency posting the notice of intended award, excluding Saturdays, Sundays, and state holidays, any employee or officer of the executive or legislative branch concerning any aspect of this solicitation, except in writing to the procurement officer or as provided in the solicitation documents. Violation of this provision may be grounds for rejecting a response.”

Practice Tip: The statute only references solicitations and not “competitive solicitations.” The term “competitive solicitation” is a defined term in s. 287.012(6) and used numerous times throughout s. 287.057. Under the general rules of statutory construction, it is assumed the Legislature omitted the word “competitive” intentionally, meaning the cone of silence provision likely applies to all solicitations and not just competitive ones as the term is defined. This would align with Florida’s policy of open and fair procurement. Agencies should take note of this as well when crafting their solicitations.

Breaking It Down

The statute begins by instructing agencies that certain language must be included in all solicitations for the procurement of commodities or contractual services. Let’s see what the language really means:

• “Respondents to this solicitation or persons acting on their behalf may not contact, between the release of the solicitation and the end of the 72-hour period following the agency posting the notice of intended award, excluding Saturdays, Sundays, and state holidays”

  • The restriction applies to anybody from your company or any representative such as a lobbyist or attorney.
  • It applies from is the date the solicitation is posted, until 72 hours after the award. This can be confusing, but the restriction applies during this time period because bidders have 72 hours to file a notice of protest. Contact with the agency before all bidders have had an opportunity to challenge the award would be inappropriate.
  • You may be eager to find out why you lost or won, but you must wait to talk to agency leadership. There’s a reason the cone of silence restrictions expire at the same time as the right file a bid protest.

• Any employee or officer of the executive or legislative branch concerning any aspect of this solicitation, except in writing to the procurement officer or as provided in the solicitation documents.

  • The restriction applies to any communication concerning any aspect of the solicitation. This is very broad and does not only capture an attempt to influence the outcome. A question as simple as “who else bid?” to anyone except the procurement officer could potentially disqualify you.
  • Assuming you intend to communicate about the solicitation, you are only allowed to write to the Procurement Officer or other person identified in the solicitation documents.
  • Neither you nor your representative may contact anyone in the executive branch (meaning any state employee), or anyone in the legislative branch (meaning your local representative, senator, or staffer).

• Violation of this provision may be grounds for rejecting a response.

  • Just what it says. Violating the cone of silence can result in the full rejection of your bid even if you had good intentions. While there is some agency discretion involved, it’s ultimately bad optics for an agency to allow a cone of silence violation to go unpunished.

If you want to avoid trouble, then follow the general rule that all communications about a procurement must be in writing to the Procurement Officer identified in the solicitation. If you stick to this rule, there’s a very high likelihood you’ll never violate the cone of silence.

Case Study: Egis Projects, Inc. v. Florida Department of Transportation

The following case study is a great example of when ignorance of the cone of silence can carry a heavy price. A potential minor setback was mishandled and became a major problem. The lesson here is that all communications about a procurement MUST go through the procurement officer.

What you should not do is submit a late bid, call the Secretary’s personal cell phone, and leave a cryptic voicemail stating you want to talk about the procurement. That’s exactly what happened when I was General Counsel of the Florida Department of Transportation. The case was Egis Projects, Inc. v. Florida Department of Transportation, DOAH Case No. 21-00216BID, and I handled it personally.

FDOT had posted a Request for Proposals solicitation for Customer Service Operations for the Sunpass Toll System. A big contract no doubt. The company Egis Projects, Inc. (“Egis”), based in Europe, decided to bid on the project to try and secure some North American market share.

An issue arose when FDOT failed to read Egis’s name aloud at the Friday afternoon bid opening meeting. This meant that Egis had not submitted a timely proposal. Egis followed the proper process to challenge the decision by filing a bid protest proceeding. Egis argued it had submitted a timely proposal, but that an email issue caused by FDOT was the reason the bid was received late. Egis said its representative had pushed “send” on the computer prior to the deadline. Egis argued that this was a minor technicality, known in Florida bid protest law as a “minor irregularity,” which required that its bid be accepted.

However, there was more to the story. A more complete timeline painted a different picture. The bid opening meeting was held on a Friday afternoon. The following Monday, Egis’s COO decided to call the head of the Florida Turnpike and the FDOT Secretary’s personal cell phone. The COO left a voicemail on the FDOT Secretary’s personal cell phone, which the Court transcribed. The voicemail said:

Hi Kevin, this is [NAME WITHHELD], Jennifer indicated you were traveling today, so I thought this might be a good time to have a short conversation with you. She indicated you had a kind of a mid-day and then a late afternoon traveling session. Either one would be fine. Uh, but uh, and, and it’s a short conversation, but I need to make you aware of an issue with the Florida Turnpike procurement for the back-office operation. I thought it would be worthwhile to have this conversation privately before anything gets out of hand. Anyway, thank you. Look forward to talking with you. Please don’t hesitate to call me at your convenience. [PHONE WITHHELD]. Same number that this call is coming in on. Thanks.

The next day, Tuesday, Egis’s CEO decided to email the FDOT Secretary:

Hello Kevin,

I hope my email finds you well.

I am writing in regards to the DOT-RFP-21-8019-SM Customer Service Operations. We submitted our offer before the deadline, but for some unknown reason, your procurement office did not receive it prior to the deadline. Because we could not copy anyone on the emails, we were unsure if the procurement Office received the files. I asked my Project Director to call your Procurement Officer to get a validation.

To our surprise, the file has not yet been received.

What is the process I should pursue to have our proposal accepted for evaluation?

On Wednesday, Egis finally emailed the Procurement Officer requesting that its proposal be deemed timely. Egis attempted this only after the failed attempts to communicate with the highest levels of FDOT leadership.

Once the case hit my desk, I did a file review and spoke with FDOT Leadership. I learned about the cone of silence violations that occurred and the agency decided to reject Egis’s bid entirely. I filed a Motion to Relinquish Jurisdiction (akin to an administrative motion to dismiss) arguing that the cone of silence violation was fatal to the bid protest.

The Judge from the Division of Administrative Hearings relied upon the case of AHF MCO of Florida, Inc. v. Agency for Healthcare Administration, 308 So. 3d 1136 (Fla. 1st DCA 2020), to dismiss the matter. The Court conducted a short and plain analysis to back up its ruling:

The Chief Operating Officer of Egis and the Chief Executive Officer of Egis are persons acting on the behalf of Egis. They contacted an officer or employee of DOT. Mr. [NAME WITHHELD]’s communication was not in writing. The DOT Secretary was not the procurement officer. The contacts were before the end of the 72-hour period following posting of an intended award. DOT has determined to exercise its discretion to reject Egis’s response because of its “cone of silence” violations. Each criterion of section 287.057(23) has been satisfied.

Based on this, the Judge granted the motion and sent the case back to FDOT to dismiss the protest entirely.

Lessons Learned

What lessons should you take away from this? Well, I would recommend that you never ever ever violate the cone of silence. Egis likely spent tens of thousands of dollars preparing its proposal for the entire Sunpass back office system. Any Floridian understands how massive the Sunpass system is. Yet, all that effort was ultimately wasted due to Egis’s lack of understanding of Florida procurement law.

I do not believe Egis had any nefarious intent or was lying about what it experienced. However, the sanctity of Florida’s open and public bidding laws should not be violated by leveraging personal contacts and relationships to secure an advantage. To allow Egis to secure special treatment because it had the FDOT Secretary’s cell phone number would have been unfair to every other bidder who managed to submit a timely bid and verify that it was received.

Finally, another piece of advice. This entire issue arose because Egis chose to submit its bid on the cusp of the deadline. That issue was never addressed, but I was absolutely teeing it up in FDOT’s defense. The bid protest claimed “Each of these emails was sent well in advance of the 2:30 p.m. submission deadline.”

The bid protest then notes, no joke, that the emails were submitted at 2:21 p.m., 2:23 p.m., and 2:24 p.m.

Egis decided to give itself a whopping 9 minutes of time to submit a major bid on one of the nation’s largest toll operations. Could Egis have just submitted its proposal the day before and then confirmed receipt via the Procurement Officer? YES! Did they? NO! So the lesson here is be prepared and submit your bids in advance.