Reducing the Risk of Bid Protests

It's no secret that bid protests in public contracting are on the rise.  This is due to a number of factors.  

Why Protests Are on the Rise:  There are many contractors from the commercial and residential markets who are now bidding public works projects for the first time who are not familiar with public bidding requirements.  They may make mistakes that a more experienced contractor would avoid.  In addition, because the public sector is one of the few places where there are projects, competition is intense.  A second low bidder is much more likely to protest the low bid simply because of the lack of other available work.

Owner Actions to Reduce Protest Risk:  Bid protests take time, cost money, and can delay projects.  So what can public agencies do to lesson the risk of receiving bid protests?  

1. Do you have a quality control procedure in place to carefully review your bidding documents before advertising?
2. Are the bidding documents clear and simple? 
3. Have you reviewed your standard instructions to bidders and bid form recently, or obtained an independent review of these documents? 
4. Do you know the type of issues that are most likely to cause bid protests, and have you developed a plan to reduce those risks?
5. Do your bidding documents limit the submission of items with the bid to the bid form, bid guaranty, and subcontractors list (if applicable)?  
6. Is your staff appropriately trained in the receipt and opening of public works bids?

Contractor Actions to Reduce Protest Risk:  If you're a contractor, ensuring that your low bid isn't the subject of a protest can be helped by carefully reading the bidding documents and instructions.  Spending time doing take-offs, reviewing the drawings, and developing your bid price may not be enough if you haven't followed all of the instructions.  If the owner has used a bidder's checklist, go through that thoroughly.

GC/CM Selection:  If you're an owner and are selecting contractors for a Design-Build or GC/CM (General Contractor/Construction Manager) project that permits use of subjective evaluation factors in addition to certain prices, make sure your RFP or RFQ documents are clear.  Read them over one last time, asking the question of how the documents might be misinterpreted and be the subject of a bid protest.