Can a Florida school district open competitive bids electronically through an online procurement system without holding a physical public bid opening?

Plain-English summary

Broward County's school board general counsel asked whether the school district could open bids, responses, and replies electronically through an online procurement system, without conducting a physical public bid opening. The question arose because of two layers of rules:

1. Section 1010.04(2), as amended in 2016, allows school districts to make purchases "through an online procurement system, an electronic auction service, or other efficient procurement tool."

2. Section 4.2(2)(e) of the State Requirements for Educational Facilities (the SBOE rule under Chapter 120) requires that "[b]ids shall be publicly opened, read and tabulated at the designated time and place by an employee of the Board or other appointed individual."

The AG addressed two threshold points and then routed the substantive question elsewhere.

Threshold 1: The public records exemption. Section 119.071(1)(b)2. exempts sealed bids until notice of an intended decision or 30 days after opening, whichever is earlier. The AG said this exemption does not preclude opening bids publicly at an appointed time and place; it would appear to protect against access before opening. The exemption's statutory endpoint may fall after the opening.

Footnote on section 255.0518. The AG cited this statute as a comparison: for sealed bids on construction or repairs of public buildings and works, it requires a public meeting at which bidder and price are announced. The letter did not decide how that meeting requirement interacts with electronic procurement or require participants to meet in person.

Substantive question routed. The Legislature expanded school district procurement methods in § 1010.04(2), but the AG found no indication that it meant to change procedural requirements for competitive bidding. Whether the State Board of Education's public-opening rule permits electronic opening at a specified time and place was a question for that board. The AG declined to interpret its rule and suggested contacting the Florida Department of Education's Office of Educational Facilities.

Currency note

This opinion was issued in 2016. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Could the school board electronically open bids in 2016?
A: The AG did not decide. It found that online procurement under § 1010.04 did not dispense with State Board rules and left interpretation of the public-opening rule to the State Board of Education. It suggested contacting the Florida Department of Education's Office of Educational Facilities.

Q: What about the public records exemption for sealed bids?
A: The AG said the sealed-bid exemption does not preclude a public opening. The quoted statute continues the exemption until notice of an intended decision or 30 days after opening, whichever occurs earlier, so it can extend beyond the opening itself.

Q: Why couldn't the AG just interpret the SBOE rule?
A: The AG's office said it could not interpret the State Board of Education's rule. It identified that board as the body to determine whether the rule permits electronic opening at a specified time and place.

Q: What about construction bids?
A: The letter's footnote cites section 255.0518 for a public-meeting requirement when opening sealed construction or repair bids, with bidder and price announced. It does not say the meeting must be in person or decide whether an electronic process can satisfy that statute.

Q: How did this opinion shape later guidance?
A: The letter did not report later guidance. It left the electronic-opening question to the State Board of Education and suggested contacting the Department of Education's Office of Educational Facilities.

Background and statutory framework

Section 1010.04 governs procurement for school districts and Florida College System institutions. The opinion says subsections (1) and (2) were amended during the 2016 legislative session and quotes language permitting online procurement systems, electronic auction services, and other efficient procurement tools. It does not identify which language the amendment introduced. The AG found no indication that the Legislature meant to alter competitive-bidding procedures.

The State Board of Education's "State Requirements for Educational Facilities 2014" applies to educational and ancillary facilities constructed by a school board. The letter says projects estimated at $300,000 or more require published legal notice. Section 4.2(2)(e) requires public opening, reading, and tabulation of bids at a designated time and place. The requirements were adopted under Chapter 120.

In a footnote, the AG compares section 255.0518's public-meeting opening requirement for construction or repair bids. That comparison does not answer the letter's question about electronic opening under the State Board of Education rule.

Citations and references

Statutes:

• § 1010.04, Fla. Stat. (Purchasing by school districts and Florida College System institutions)
• § 287.056, Fla. Stat. (State term contracts)
• § 119.071, Fla. Stat. (Public records exemptions)
• § 255.0518, Fla. Stat. (Bid openings for construction or repair)

Rules:

• State Requirements for Educational Facilities 2014, § 4.2(2)(e)

Prior AG opinions:

• Op. Att'y Gen. Fla. 2013-30 (sealed bids; public meeting bid openings)

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/school-districts-electronic-purchasing-options
• Official print view: https://www.myfloridalegal.com/print/pdf/node/8048

Original opinion text

Ms. Barbara J. Myrick

General Counsel

The School Board of Broward County

600 Southeast Third Avenue, 11th Floor

Fort Lauderdale, Florida 33301

Dear Ms. Myrick:

On behalf of The School Board of Broward County, you ask for assistance in determining whether the board may electronically open bids, responses, and replies submitted through an online procurement system for competitive proposals, without conducting a physical public opening of bids, proposals, or replies. Your question arises in light of section 4.2(2)(e), State Requirements for Educational Facilities, stating that “[b]ids shall be publicly opened, read and tabulated at the designated time and place by an employee of the Board or other appointed individual.” You also question the incompatibility of the requirement that sealed bids be publicly opened with the exemption from disclosure in section 119.071, Florida Statutes, for sealed bids, proposals, or replies received by an agency pursuant to a competitive solicitation.[1]

Initially, I would note that the exemption in section 119.071, Florida Statutes, for sealed bids does not preclude publicly opening bids at an appointed time and place, but rather would appear to protect against public access to sealed bids prior to their being opened.[2]

Section 1010.04(1) and (2), Florida Statutes, as amended during the 2016 Session,[3] provides:

“(1)(a) Purchases and leases by school districts and Florida College System institutions shall comply with the requirements of law and rules of the State Board of Education.

(b) Before purchasing nonacademic commodities and contractual services, each district school board and Florida College System institution board of trustees shall review the purchasing agreements and state term contracts available under s. 287.056 to determine whether it is in the school board’s or the board of trustees’ economic advantage to use the agreements and contracts. Each bid specification for nonacademic commodities and contractual services must include a statement indicating that the purchasing agreements and state term contracts available under s. 287.056 have been reviewed. Each district school board may also use the cooperative state purchasing programs managed through the regional consortium service organizations pursuant to their authority under s. 1001.451(3). This paragraph does not apply to services that are eligible for reimbursement under the federal E-rate program administered by the Universal Service Administrative Company.

(c) Purchases and leases by state universities shall comply with the requirements of law and regulations of the Board of Governors.

(2) Each district school board and Florida College System institution board of trustees shall adopt rules, and each university board of trustees shall adopt regulations, to be followed in making purchases. Purchases may be made through an online procurement system, an electronic auction service, or other efficient procurement tool.”

The plain language of the statute directs that purchases by school districts must comply with the rules of the State Board of Education and allows each district school board to use online procurement systems, electronic auction services, or other efficient procurement tools to make purchases. While there may have been an expansion of the means for making purchases using the Internet, there is no indication that the Legislature intended to alter the procedural requirements for competitively bidding certain purchases.

The Florida State Board of Education has adopted the “State Requirements for Educational Facilities 2014” pursuant to Chapter 120, Florida Statutes, applicable to all educational and ancillary facilities constructed by a school board. For construction projects estimated to cost $300,000.00 or more, legal notice published in accordance with Chapter 50, Florida Statutes, is required.[4] Such legal notice must provide at least the following information:

“1. Project name and name of Board.

2. Location of the project.

3. Brief statement describing the work.

4. Date, time and place of bid opening.

5. From whom and when contract documents are available, including deposit

or charge.

6. Other information for bidders: prequalification of bidders, notice of pre-bid conference, bid security, insurance, plan deposit and whether the Board intends to waive technicalities.” (e.s.)[5]

Section 4.2(2)(e), State Rules for Educational Facilities, requires that “[b]ids shall be publicly opened, read and tabulated at the designated time and place by an employee of the Board or other appointed individual.”

Whether the requirement that competitive bids be publicly opened, read, and tabulated at a designated time and place by an employee of the school board or an appointed individual precludes the electronic opening of such bids at a specified time and place is a question which must be determined by the State Board of Education. This office cannot interpret the board’s rules, nor may it read into the Legislature’s expanded means of procuring commodities the authority to disregard the State Board’s rules. It would be advisable for you to contact the Florida Department of Education, Office of Educational Facilities, at the following:

Mr. Thomas H. Inserra, Director

Office of Educational Facilities

Florida Department of Education

1054 Turlington Building

325 West Gaines Street

Tallahassee, Florida 32399-0400

850.245.0494 Telephone

850.245.9236 Fax

I am hopeful that Mr. Inserra will be able to clarify the requirements a school district must meet in order to utilize electronic purchasing options while complying with the rules of the State Board of Education.

Sincerely,

Lagran Saunders

Senior Assistant Attorney General

ALS/tsh

________________

[1] Section 119.071(1)(b)2., Fla. Stat., provides:

“Sealed bids, proposals, or replies received by an agency pursuant to a competitive solicitation are exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution until such time as the agency provides notice of an intended decision or until 30 days after opening the bids, proposals, or final replies, whichever is earlier.”

[2] Cf. s. 255.0518, Fla. Stat., providing that notwithstanding s. 119.071(1)(b), Fla. Stat., agencies receiving sealed bids pursuant to a competitive solicitation for construction or repairs of a public building or public work must open the bids at a public meeting conducted in compliance with the Sunshine Law and must also announce the bidder and price information at that meeting. See also Op. Att’y Gen. Fla. 2013-30.

[3] See CS for SB 350, 2016 Legislative Session.

[4] Section 4.2(2), State Requirements for Educational Facilities 2014, effective November 2014, p. 45.

[5] Id.