Mark Stempler, a Managing Shareholder in Becker’s Construction Law & Litigation and Business Litigation Practices, wrote this article published in Florida Bid Reporting about legal and practical issues concerning public procurement, bid protests, and other formal challenges. While most procurements are administered by government agencies without issues, there are times when challenges become necessary to ensure the proper procedure was followed, and the award was made to the proper vendor. The article below will explore the numerous issues vendors may face, and how to identify and address them.
Whether it is a federal, state, county, city, town, or other local government agency, there is likely a code or set of rules governing its public procurement process. The general purpose of an agency’s procurement codes or rules is to create a system where goods and services can be acquired for the lowest cost and/or by the best vendor. You can usually get a copy of the agency’s code and protest policies on its website, or through other online services.
Generally, if the bidder presents the lowest responsive and responsible bid, or if the proposer comes up with the best and most cost-effective proposal, that vendor will likely be awarded the contract for the goods or services sought. The intent of the procurement process is to protect the interest of the taxpayers, and for each vendor to compete on a level playing field. If substantive or procedural specifications in the evaluation process have been violated, a losing vendor may have grounds to object to, or “protest,” the agency’s award.
Once an award or recommendation for award decision has been made, unsuccessful bidders may have the opportunity to challenge or “protest” the decision. Generally, a protest is an administrative challenge to the award decision and is a condition precedent to the filing of a lawsuit.
Protesting an award to another vendor can be complicated. Each agency has a unique set of rules and regulations governing its procurement process which must be followed. Protest submittal deadlines are typically short, and the format and method in which to submit it in may be specific and nuanced. The protest grounds, and an understanding of the agency’s protest procedure, must be determined very quickly.
Some agencies may require a Notice of Intent to Protest an award before a formal protest is due. The Notice of Intent to Protest may be short statement from the protestor that it is going to file a protest. Sometimes, however, an agency will require a protestor to state all protest grounds in the Notice of Intent. The rules can vary by government agency to government agency.
If you file a protest, you may be required to produce a protest bond. The amount of the bond also varies from agency to agency. Sometimes the amount may be a percentage of the protestor’s bid or proposal amount. Or it could be a set sum. The most important thing about the bond is that if it is required, the protestor must file it when and where it is due, and in the proper form. Otherwise, the entire protest proceedings may be waived, and the protestor will lose the protest.
The formal protest is a form of a written submission to the agency and states in detail the protest grounds raised. Most agencies’ codes require the protestor to list every protest ground, and any issues not raised could be waived and not considered in the evaluation of the award. Some agencies’ codes also require protestors to submit all supporting evidence with the formal protest and will not consider evidence submitted after the protest is received.