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Bid Protest: Challenging the way Governments do Business

Bid Protest: Challenging the way Governments do Business. Kevin M. Long Eric J. Van Schyndle. Agenda. What is a bid protest? Should you protest? What to look for (and ask for) when evaluating your chances on a bid protest What you need in order to Protest Defending against a protest

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Bid Protest: Challenging the way Governments do Business

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  1. Bid Protest:Challenging the way Governments do Business Kevin M. Long Eric J. Van Schyndle

  2. Agenda • What is a bid protest? • Should you protest? • What to look for (and ask for) when evaluating your chances on a bid protest • What you need in order to Protest • Defending against a protest • Standards to Prevail • Procedure and timing of a protest • Outcomes

  3. What is a Bid Protest? • A challenge to a government’s procurement process. • Providing offerors an opportunity to ensure a fair and objective process • Providing the public with accountability

  4. Should you Protest?GAO Protest Statistics

  5. Two Types of Protests Pre-Award Post-Award Challenging the evaluation and award decision. Common Examples: Deviating from stated evaluation criteria. Relaxing RFP requirements. Unequal discussions Arbitrary evaluations • Challenging the terms of the solicitation • Common Examples: • The solicitation is unduly restrictive/overstates the government's needs. • Ambiguous requirements or terms. • Requirements that unnecessarily favor one offeror.

  6. What you Need to Protest • Good Faith Basis • SCR 20:3.1 • Always Start with the Solicitation

  7. Getting the Records • Procurement Manual • Wisconsin Department of Administration – PRO-D-23 • “The public may inspect RFB records and may copy them after the notice of intent to award is issued…” • “All materials submitted for the RFP process are available for public inspection after the notice of intent to award is issued…”

  8. Getting the Records • Public Records – Wis. Stat. Sec. 19.31 et al. • May require a petition for writ of mandamus • Common Practices • i.e. – DOA

  9. Defending Against a Protest • Know the Rules • Work with the Government • Intervene if Permitted and Necessary

  10. StandardArbitrary and Capricious • Whether the government: • Kept within its jurisdiction • Acted according to law • Acted arbitrarily or • Made a reasonable decision

  11. Procedure and TimingKnow Where You Are • Pre-proposal/bid or Post Award • State or Municipal • Administrative Review • Court Review

  12. Procedure and TimingTiming is Everything • Deadlines typically jurisdictional • Very common way to dismiss a protest • Courts typically will not revive a blown deadline • And PRN…

  13. Don’t Forget PRN • PRN Associates LLC v. State, 2009 WI 53 • Once a contract is signed, a protest is moot.

  14. Don’t Forget Wisconsin’s New Rules • Single-Prime Contracting • Sub-contract protests will likely need to be filed within 48 hours of bid opening on projects valued in excess of $185,000. • http://www.doa.state.wi.us/Default.aspx?Page=33519fba-e062-4a0a-8903-67406dbed1ef

  15. Outcomes • Know your measure of success beforehand. • Protests are always uphill battles, but they can be won.

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