Pre-Bid Bid Protests vs. Post-Bid and Post-Award Bid Protests on California Public Contracts

Most bidders on Invitations for Bids or Requests for Proposals on State and Local Government Contracts or Public Works Projects in California are familiar with Post-Bid or Post-Award Bid Protests.

In such Protests, the government has received bids or proposals from several government contractors, usually has reviewed and tabulated the bids by price or other factors, and after has made a determination which bidders are or are not “responsive” or responsible bidders, and has awarded or has indicated its intent to award the public contract to the “best” or lowest responsive, responsible bidder.

In those Post-Award bid protests, another bidder - typically other than the lowest bidder, or a bidder whose bid has been found to be non-responsive to the terms of the Invitation for Bids or Requests for Proposals - promptly file a Protest with the government, contending either that the government has made an error in determining who was the best, lowest, responsive bidder, or contesting the government’s finding that it was not responsive, responsible, the best bid or proposal. (See related article).

In such a Post-Bid Protest, the unsuccessful bidder either attacks the bid of the successful bidder(s), or attacks the government’s decision as to who is deserving of the contract award, with the goal of changing the government’s decision, or proposed-decision and hopefully becoming the successful bidder/proposer itself.

These types of protests, which typically move very quickly (subject to review by a Writ of Mandamus in the Superior Court) usually are resolved in a few days by upholding or changing the governments decision or proposed contract award.

However, in some cases the Government may elect to exercise its right to reject all bids, and to either put it out to bid again, or elect another allowable form of procurement.

By contrast a Pre-Bid or Pre-Award “Protest” is typically filed before bids are due, or before the date set for bid openings, but can sometimes be successfully filed later.

In this type of “protest” the protestor challenges either the legal validity of the procurement or bidding process chosen, vagueness or uncertainties in the bidding OR proposal process, or project description or specifications, the fairness of the process or the specifications, etc.

Examples of such protest might be where the government has used a bidding process not authorized by law, or where the specifications or the bid process give illegal or unfair advantages to a certain bidders, or where the description of the work or the standards for evaluating bids/proposals are vague and uncertain, such that bidders cannot determine in advance what they must do or offer in order to be awarded the contract/job.

In these types of protests, the goal of the protester is not necessarily to get the contract for itself, but to have the government correct the errors, uncertainties, or unfairness in the bid documents, to create a fair and intelligible bid process.

Thus, in this type of Protest, there is an advantage to filing the protest early on in the bidding process, well before the bid date, so that the government can make the necessary, changes or clarifications to the bid documents and process well before the bid date, and avoid a need to re-bid the contract.

However, especially where there are legal errors in the bid process or bid documents, a successful challenge likely could be pursued even after the bid date.

These types of “Pre-Award” protests are much more common in Federal Government Contracting, where the government has adopted regulations governing their filing and timing

They are also possible to some extent in California, especially on legal grounds, or where the government has rigged the bid process or bid documents in such a way as to favor certain bidders over others.

A Pre-Bid or Pre-Award Bid Protest, to the extent that it result in a more clear, intelligible and fair bidding, proposal process, may also make it more likely that a bidder will be awarded the contract later, or have grounds for successful Post-Award or Post-Bid protest later on.

It is very important to consult with legal counsel in the Pre-Bid stage of the bidding process if you believe the bid process or project specifications are vague, unclear, somehow unfair to bidders generally or to a particular class of bidders, do not comply with the law, or otherwise might result in an unfair, chaotic, or illegal bidding process.

If these conditions exist, you should discuss with legal counsel making a Pre-Bid objection or “protest” to the bid process or specifications, because if you go ahead and bid under such circumstances and lose, the Public Entity or the Courts may find that you have waived any objections to the bid specifications or bidding process by failing to timely object or by failing to bring the problems to the attention of the public entity, so that they could be fixed or corrected before bids are submitted.