Although most businesses are aware of their right to protest or contest the award of government public works, purchasing or procurement contracts in a post-bid or pre-award Bid Protest, many companies are unaware of the timing and need for early engagement of a public contract attorney in the competitive bidding (“IFB”) or Request for Proposal (RFP) process, and often do not get legal counsel involved until it is often too late, and irreparable mistakes or omissions have been made.
Protests to bidding or procurement processes can typically be made prior to the deadline for the submission of bids or proposals, before bids or proposals are due, and typically address problems with the solicitation or bid advertisement, such as vagueness, or some illegality or unfairness in the procurement process.
The goal of such pre-bid “protests” or objections is to try to get problems in the procurement process fixed before the prospective contractors undergo the costs of submitting their bids or proposals, etc.
By regulation and/or under some Court decisions, failure to timely make a “pre-bid” protest or objection to the solicitation before the bid date may prevent a contractor from raising issues which could have been brought up at this early stage of the bidding process at any later date, back as in a later and bid or RFP solicitation in a “post-bid/pre-award protest”
Such post-bid/pre-award Bid Protests typically address two issues:
(1) Whether the bid/proposal documents submitted to the public agency comply with the agency with the instructions stated by the agency in the bid/proposal solicitation (this is referred to as whether the bid/proposal is “Responsive” to the solicitation).
(2) The second item considered in a post-bid/pre-award protest is whether or not a bidder itself is a “Responsible” bidder, or whether the bidder meets the qualification or experience or the capacity or trustworthiness “to satisfactorily perform” the Contract. Pub. Cont. Code § 1103.
Post-Bid/Pre-Award protests must typically be made in very short time periods after bids are opened or evaluated, sometimes as short as three or five days or other short periods.
From this background, the lessons for prospective bidders on public or government contracts is that, if the performance of project or obtaining the contract is important or key to your business, the best practice would be to engage a Bid Protest attorney or public contract legal counsel early in the process, well before bids or proposals are submitted, so that flaws in the IFB or the RFP solicitation and process can be timely addressed and not waived, so that you are in the best position for a possible successful bid or proposal protest and decision and contract award.
N.B. This article DOES NOT constitute legal advice or create an attorney/client relationship with the reader, and YOU MAY NOT rely on it without retaining a competent California government contracts or public works lawyer to consult regarding your particular situation. Facts and contracts vary greatly and the law is constantly changing and evolving and this Article or parts of it may be or may become outdated or invalid. Please also note that factual situations vary, and statutes, regulations and case law are frequently changing and evolving, and these materials thus also may now be or may become outdated or incorrect. For further information on the subject of this article or for legal questions on subcontractor substitutions, California public works lawyer or government contracts bid protest attorney. If you have specific questions on public works contracts or government contracts, bid protests or other disputes and litigation please call us at 415-788-1881, or Contact Us via email, or see www.wolfflaw.com. |
© 2022, George W. Wolff, all rights reserved.