Prioritizing Mental Health in the Construction Industry
Protesting a bid award is a serious action not to be taken lightly. It’s done when bidders feel a contract was awarded unfairly or the bid process was unfair. While it isn’t a legal process, you may want to consult with an attorney before submitting a bid protest.
We’re going to look at what a bid protest is, why you would want to file one, who can file one, when it must be filed, and finally, how to file a bid protest.
What is a bid protest?
A bid protest is a challenge to the awarding or proposed awarding of a contract for goods or services. You would file one because you feel a contract was awarded unfairly or the bid or RFP process was handled unfairly. Contractors may protest the awarding of a contract on public works projects. In private projects, a bid may also be protested, but the process is much less regulated. Always review all the bid documents to see how to protest a bid on a specific project.
What reasons are valid for a bid protest?
A bid may be protest because you believe the bid or awarding process was unfair. There are lots of reasons that a bid process can be seen as unfair:
- disqualified vendors were allowed to bid on the project
- the winning proposal was missing portions required by the bid documents
- the bids were not scored correctly
- the award went to a bidder who was not low
If any of these, or similar reasons, have occurred during a public bid process, a contractor may protest the bid award.
Who can file a bid protest?
A bid protest can be filed by “interested parties” to the bid. This usually means other contractors associated with the bid opportunity. Outside entities generally aren’t allowed to file a bid protest.
When must a bid protest be filed?
A bid protest must be filed within the protest deadline, which is usually detailed in the bid documents. Generally, it is between 10 and 15 days from the announcement of the winning bidder.
How to protest a bid award
The first step to protesting a bid is to request all records related to the bidding process from the government entity who sponsored the bid. For federal projects this information is available through the Freedom of Information Act. For state projects, all documents related to bidding on public works projects are public property.
To request the records, submit a written letter requesting all relevant documents regarding the bidding process for the specific project. Include these documents in your request:
- Other bidders’ proposals;
- Communications between other bidders and government officials;
- Communications between and amongst government officials;
- Minutes of any meetings;
- Memorandums or other documents prepared by government officials;
- Notes prepared by government officials, including evaluation committee members; and
- Scoring records regarding the proposals.
Once you’ve received the documents from your request, review the information to determine if the bidding process was unfair. You may want to have an attorney help you with this review process.
If you find that the process was unfair, follow the procedure in the bid documents to file a protest. This usually involves sending a letter to the contracting entity listing the reason why you are protesting the bid. Make sure you meet any deadlines and follow any instructions to the letter.
Once you’ve submitted your protest, it will be reviewed by the contracting entity. If your request is denied, you can file a lawsuit and request a preliminary injunction to halt performance of the contract until the lawsuit is settled. This will halt work on the project until a decision is reached.
If the bid is declared unfair, the most likely outcome is that the project will be rebid. So, you’ll have to bid again against the other competitors on the same work.
If you feel that a bid was unfairly awarded to another contractor and can prove that something about the process was not performed correctly, you may want to file a bid protest. The process is fairly easy and straightforward. Just send a letter explaining why you think the award was unfair and justify your reasons. If the protest isn’t successful, you can file a lawsuit and request a preliminary injunction to halt work on the contract. This prevents work from being performed until the lawsuit is settled.
The most likely outcome of a lawsuit or a bid protest is that the project will be rebid. This can delay construction and may cause additional costs for contractors, so consider your options carefully. You may want to consult with an attorney before filing a protest.