Bid Protests and Appeals

Bid protests are nothing new. On Tuesday, March 11^th, Boeing filed a formal protest on the Pentagon’s decision to award an Air Force tanker contract to its rivals. See story in the Seattle Times.

In Washington State, there are at least three laws that deal with bid protests on public works construction projects, all of which provide due process for the protesting bidder and establish time deadlines for filing a protest.

Public Works Contracts: RCW 39.04.105 prohibits a public agency from executing a public works contract with any bidder other that the protester without giving the protester as least two full business days’ written notice of its intent to execute a contract. The two day provision is there to give the protesting bidder an opportunity to seek a court injunction against the public agency moving forward with the contract. This two day delay in contract execution, however, only applies if the protesting bidder has submitted a written protest no later than two full business days after bid opening.

This law applies to “municipalities” which are defined in RCW 39.04.010 as “every city, county, town, district, or other public agency authorized by law to require the execution of public work.” In this last session of the Legislature, SSHB 3274 was approved that added “port district” to the list of agencies covered by the term “municipality,” a partial response to the highly critical audit of the Port of Seattle’s construction management and contracting practices conducted by the Washington State Auditor’s Office.

GC/CM Contracting: RCW 39.10.380 (4) applies to the public subcontract bidding conducted by a General Contractor/Construction Manager (GC/CM) under contract with a public agency. If the GC/CM receives a written protest from a subcontract bidder or an equipment or material supplier, the GC/CM is under the same constraints as a public agency (as noted above) against executing a contract with any bidder other than the protester without giving at least two full business day’s written notice to all bidders of the GC/CM’s intent to execute a contract for the subcontract bid package. Likewise, the protester must submit its written protest no later than two full business days following the bid opening.

Bidder Responsibility: In RCW 39.04.350, a public agency may establish supplemental bidder responsibility criteria. If the public agency finds that the low bidder does not meet the criteria, the bidder may appeal the determination within the time period specified in the bidding documents (a period established by the public agency). The public agency must consider the information submitted in the appeal. If the public agency continues to affirm that the bidder is not responsible and does not meet the supplemental bidder responsibility criteria, it issues its final determination to the disqualified bidder. However, the public agency may not execute a contract with any other bidder (other than the protester) until two business days (it doesn’t say “two full business days” as the other laws cited above do) after the not-responsible bidder has received the public agency’s final determination.