In Public Bidding, You Can Fight City Hall and Win (or at Least Not Lose)
In the fight for public contracts, many bidders who feel they have been mistreated or were affected by erroneous reviews and evaluations of their bids or another bid often hesitate to file a challenge. They may feel that they simply can’t win, or that the bidding entity will hold a grudge or treat them differently in future attempts to bid. After more than 85 cumulative years of reviewing challenges and protests for state agencies and municipal governments and representing clients who have challenged a rejection of their own bids or an award to another, our Administrative Law and Government Contracts Team can without hesitation say that neither is a valid basis to refrain from filing a protest.
The protest process is a part of the totality of the award process and public entities expect that bidders will avail themselves of the process, if warranted. Sometimes, evaluators make a mistake in their review of a bidder’s submission, or they misunderstand a bid submission, or important information has been overlooked. The protest process exists to allow for a review of these circumstances. Or there may be existing statutory circumstances that a buyer does not recognize, outside of the bid documents, which allow for the cure of an improper rejection. In a very few circumstances, the bidding entity may not have followed the correct statutory process in developing the Request for Proposals or Bids, and the process may have to be cancelled and repeated. There are numerous cases where protests have been successful either when presented to the bidding entity itself or after review by the courts, and an aggrieved bidder should not think that their plight is unwinnable or that their concerns will not be heard.
Furthermore, in the years we have spent representing bidders both at the state and local level in protesting the rejection of their bid submissions, we have not encountered one instance of public entity retribution for filling a challenge. That being said, protests or challenges based on subjective arguments that you and your proposal are simply “better” than the winner are seldom, if ever, successful, and protests on that basis alone should be very carefully considered before filing. More importantly, protests that simply “attack” the evaluators or your competitors should not be filed. Remember, the people reviewing your challenge are your potential future business partners, not your enemies. Protest procedures are meant to correct the type of errors mentioned above and are not platforms for marketing efforts or to fight your competition.
The bottom line: don’t hesitate to contact an experienced professional who can guide you on whether a protest should or should not be filed. You may be surprised to find that you’re well-positioned for success.
