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.