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Construction Law Authority / Articles posted by Mark J. Stempler (Page 3)

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

February 23, 2011
Mark J. Stempler
Procurement

In many bid protests, the ultimate question is whether the bidding irregularity or irregularities at issue gave the winning bidder or proposer an unfair advantage over the other bidders or proposers.  But, not all irregularities matter.  If it’s a material irregularity, like the winning bidder changing its price after the bids have been submitted and evaluated, and contrary to the specifications, that may be considered material.  But if it’s a minor irregularity, public agencies typically reserve the right to waive those.

Guess who decides whether an irregularity is material or minor.  The agency.  Also, keep in mind that public agencies are generally afforded wide discretion in soliciting and accepting bids, and in interpreting their own rules and requirements.  In one Florida case, a bidder submitted a cashier’s check instead of a the bid bond required by the Invitation to Bid.  The agency, and later the court, determined that since the cashier’s check accomplished the same purpose as the bid bond, it was considered a minor irregularity.  In that case the fact that bidder at issue was also the lowest bidder, and acceptance of the bid saved the agency money on the project, may have motivated the agency’s decision.

Suppose you file your protest, and someone like the purchasing director, for example, denies the protest on the merits.  Can you go straight to the courthouse to file a lawsuit?  The answer is probably not.  Administrative remedies must be exhausted before you can seek relief from the courts.  This means that you have to go through the protest procedure, and see it through to the end.  You may be required to have a hearing before a hearing officer which is a trial-like procedure.  At the end, the hearing officer may make a recommended award based on the facts presented.  That recommended award goes back to the agency, who may make the final award.

Keep in mind that a hearing officer’s recommended award is just that, a recommendation.  The order is not automatically reviewable by a court.  There may be times where a protestor can have a non-final order reviewed, but likely only if there are immediate negative consequences and review of the administrative agency’s action will not be good enough. 

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

February 8, 2011
Mark J. Stempler
Procurement

One purpose of the government procurement process is for each bidder or proposer to be on equal terms to get fair consideration of their submissions. If the bidding process has been violated, however, a losing bidder or proposer may be able to protest the government agency’s decision.

Generally, the way to win a protest is to show that an agency did something that was clearly erroneous, contrary to competition, arbitrary, capricious or fraudulent.  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.

Keep in mind that almost every agency’s rules and regulations are different. That means agencies generally have different protest procedures and deadlines. Usually the deadline to file a protest, or a Notice of Intent to protest if required, is very short. It can be a matter of hours or days. And the information required in the protest, and in submitting the protest, can be very specific.

As mentioned above, some agencies require a Notice of Intent to Protest an award before a formal protest is due. The Notice is usually a short statement from the protestor that it is going to file a protest. Sometimes, however, the complete protest grounds must be stated in the Notice. 

The formal protest is usually the more substantive letter, memorandum, or other written submission that discusses in detail all the protest grounds raised.     

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The ABCs of Bid Advertisements and Acronyms

November 23, 2010
Mark J. Stempler
Contracts, Procurement

Mark J. StemplerHave you ever responded to an ITB after being shortlisted in response to an RFQ?  If you are seeking a government contract and don’t know what any of this means, don’t worry, you are not alone.  Public agencies advertise their contracts and projects through a variety of methods and vehicles, which are usually referred to by acronyms.  While they seem confusing at first glance, once you become familiar with the terminology, you’ll be able to better respond to the advertised project.

An Invitation for Bid (“IFB”), or Invitation to Bid (“ITB”), is usually a set of specifications that have been decided on and defined by the advertising agency.  Price is usually the most important factor.  The bidder that’s has the lowest price usually wins the award.  However, the bidder also has to be responsive and responsible.  The bid is generally responsive if includes of the information sought in the ITB’s or IFB’s specifications.  A bid is considered responsible if it appears that the bidder has the ability to perform the contract.

Agencies usually use Request for Proposals (“RFP”) when they do not know what all the specifications or scope of work will be.  Proposers may be required to submit a plan describing how they plan to perform the project.  Price is generally still a factor, but there may be other factors like experience, capability, and management ability.  Like an ITB or IFB, agencies will evaluate whether the proposals are responsive and responsible.

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