Bid protests in public contracting

Public works projects in Oregon and Washington have a competitive bidding process by statute.  The purposes behind the statutes are to obtain the best work for the lowest price and to create competition so as to prevent favoritism, fraud and corruption.  In addition to the state statutes state agencies, such as the Department of Transportation, have their own regulations governing public contracting.  Generally, all such statutes and regulations require the bid to be awarded to the lowest responsible and responsive bidder.  

The statutes also contain provisions allowing unsuccessful bidders to protest the award to the contract to the apparent low bidder.  To be able to protest you must have “standing” which means you believe you are the bidder who should have been awarded the contract.  Protests are typically made to the procuring agency and to the designated person, typically the contracting officer.

There are numerous grounds to protest bids.  Typically the bid must contain a “material irregularity” which results in a non-responsive bid.  An irregularity is “material” if it gave the bidder a substantial advantage not enjoyed by other bidders.  An example is a non-certified WBE.

Typical reasons for the rejections of bids often involve bid irregularities or non-responsible bidders.  For bid irregularities, some of the typical grounds would be use of the wrong form, unauthorized additions, deletions or conditions in the bid, added provisions, unsigned bids, the inability to determine unit prices from the bids, unbalanced unit prices and missing addendum. 

Bidders may be found to be not responsible if they have submitted multiple bids, have colluded with other bidders, not become pre-qualified as required, have a poor performance record, are not authorized to do business in the state or are not financially responsible.

Bid protests are normally made by way of a protest letter.  It is important that the letter be very clear, and must be specific about the errors being complained about.  Often the letters can convince the agency.  The opportunity to also speak before a governing board is often afforded the protesters and the apparent low bidder.  The public agency generally has the ability to deny the protest, reject the bid, or reject all of the bids.

Bid protests have extremely short timelines and specific requirements.  You should promptly and carefully review all bids.   Act quickly and follow the exact process for the bid protest.  When doing so however, and be careful what you wish for.  Give serious consideration to your own bid and consider whether you truly would want to perform the project at the price you bid.  Finally, do not challenge bids unless you are serious.  Challenging bids too frequently and without firm legal grounds can cause animosity with the procuring agencies and result in a bad working relationship in the future.  Finally, have legal counsel available that is familiar with the bid protest process who can help you quickly in the event of a proposed protest.