California law generally requires public works projects that exceed $5,000.00 to be publicly bid and awarded to the lowest responsible bidder. Often times a contractor will submit a bid on a public works project only to find that they were the not awarded the project because they were lowest responsive responsible bidder. At that point, the contractor normally accepts the government entity’s decision and moves onto the next project. But what if the intended awardee’s bid is missing key information or the intended awardee not a responsible contractor?
The contractor can and should file a bid protest letter with the government entity to contest the award to the intended awardee. The procedure to file a bid protest letter is broken down in 3 steps.
1. Preserve Your Bid Protest Rights
A contractor who intends on protesting a bid should immediately notify the owner that he is going to challenge the bid even if the contractor will be submitting the formal bid protest at a later date.
Upon notification to the owner, the contractor should request copies of the lower bids from the owner. The contractor should review the bids to determine if the intended awardee’s bid is either nonresponsive to the invitation for bids or if the intended awardee is not responsible, as discussed in detail in step 3.
2. Requirements to File Your Bid Protest
Once a contractor has identified mistakes in its competitor’s bid, or grounds for challenging its competitor’s responsibility, the contractor should file a protest of the award to the intended awardee. Procedures for bid protests vary depending upon the public entity involved. The instructions for protesting the bid are included in the invitation for bids also known as the bid package. The bid package will usually include a section that outlines the procedure for submitting the bid protest letter. The produces will include the deadline to submit the bid protest letter, the mode in which to submit the bid protest letter, and will specify who the bid protest letter should be sent to. The protesting bidder must strictly comply with the requirements set forth in the bid package or risk the bid protest letter being rejected.
3. Grounds for Protesting the Intended Awardee
There are two main grounds in which a protesting bidder can challenge the intended awardee’s bid, the bidder’s responsibility and the bidder’s responsiveness to the bid. A bidder is responsible if it can perform the contract as promised. More specifically, responsibility includes the attribute of trustworthiness but also has reference to the quality, fitness and capacity of the low bidder to satisfactorily perform the proposed work. Responsibility is usually the more difficult ground to challenge the intended awardee’s bid because the intended awardee’s responsibility is subjective
to the government entity’s discretion. In the bid protest letter, the protesting bidder should outline the reasons that intended awardee is not responsible. Some examples include that the intended awardee does not have sufficient experience, the quality of their past work is lacking, or they lack the capacity for the project.
A protesting bidder can also challenge whether the intended awardee’s bid is responsive. A bid is responsive if it promises to do what the bidding instructions demand. A bid which contains a deviation from what the invitation for bid requires is non-responsive. For example, a bid is nonresponsive if the bid does not include bid security, a bidder fails to obtain a performance or payment bond when one is required, the bidder is not appropriately licensed to perform the work designated in the prime contract, or the bidder fails to list subcontractors who are performing work in an amount in excess of one-half of 1 percent of the contractor’s total bid. In the bid protest letter, the protesting bidder should outline all of the parts of the intended awardee’s bid that are nonresponsive. However, it should be noted that a bid that contains only immaterial deviations from the invitation for bid may be accepted at the public entity’s discretion.
Lanak & Hanna has significant experience in submitting bid protest letters on behalf of contractors and defending bid protests.