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Construction Law Authority / Procurement  / Government Bid Protests – An Overview (Part II of III)

Government Bid Protests – An Overview (Part II of III)

Before you file a protest, there are a couple of things to consider. First, do you have the right, or “standing,” to protest? If you are going to protest, you or your company should be able show that your substantial interests will be affected by the proposed agency action. Generally, you can do this by demonstrating that your rights under the procurement process might have been violated, and you should have, or at least could have, won the bid or been the highest ranked firm. 

Second, what are you ranked? Usually, the second ranked bidder or proposer has standing to protest because it was next in line for the award.   It’s usually more difficult to show standing if your are ranked third or lower.  However, you may still be able to protest if you can show that your substantial interests are or will be affected.  Also, if the second ranked bidder protests, bidders ranked third and lower may be able to intervene in the protest process in order to protect its position in the ranking.  Intervening basically allows the bidder or proposer to monitor and participate (usually in a limited fashion) in the underlying protest.

Third, in order to protest, you need a good reason, or reasons, to do so. An award may be overturned if an agency did something that was clearly erroneous, contrary to competition, arbitrary, or capricious. The protest evaluator, such as the purchasing director or an appointed hearing officer, 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.

Mark Stempler

Mr. Stempler focuses his practice in the areas of construction litigation, government bid protests, and civil litigation. He is Board Certified by the Florida Bar in Construction Law, and is certified as a LEED Green Associate by the United States Green Building Council. He represents clients in commercial and residential construction lawsuits, involving defects, delays, contractual disputes, mold claims, liens and lien disputes, bond claims, and insurance disputes. Clients include owners, developers, general contractors, subcontractors, design professionals, sureties, and manufacturers.

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