Finding a Basis to Protest

Finding a Basis to Protest

Suppose you have lost a bid, or you are not the top ranked proposer. Obviously the agency must have made a mistake, right? Now you are ready to file your protest and challenge the award. All you need is a reason or two, but not every reason will do. You need sufficient grounds to protest.

An award might be overturned if an agency did something that was clearly erroneous, contrary to competition, arbitrary, or capricious. The evaluator of the protest may consider whether the agency acted illegally, arbitrarily, dishonestly or fraudulently. An arbitrary decision is one that is not supported by facts or logic. A decision is capricious if it is adopted without thought or reason or is irrational.

These issues, or bidding irregularities, are generally the focus of the protest. Not all irregularities, however, will make a protest successful. The ultimate question is whether the irregularity gave the winning bidder or proposer an unfair advantage over the other bidders or proposers. This advantage may occur due to the winning bidder’s failure to follow the solicitation’s specifications.For example, if a project calls for a specific type of construction material, and the winning bidder submits the lowest bid but specifies the usage of a different, cheaper type of construction material, that bid received unfair advantage because it did not follow the specifications. It may be considered a non-responsive bid and might get thrown out. In another example, if a winning bidder or top ranked proposer was allowed to change its price after all the bids or proposals are submitted and made public, then that bidder or proposer received an unfair advantage.

A bid could be rejected if the vendor receives an unfair advantage due to a material irregularity. Public agencies typically reserve the right to waive minor irregularities. Public agencies generally get to decide whether a variation is material or minor during the procurement process. In fact, public agencies are generally afforded wide discretion in soliciting and accepting bids, and in interpreting its own rules and requirements. In one Florida case, a bidder submitted a cashier’s check instead of a bid bond, which was required by the Invitation to Bid. Since the cashier’s check accomplished the same purpose as the bid bond, it was considered a minor irregularity. It may have helped that the bidder was also the lowest bidder, and acceptance of the bid saved the agency money on the project.