When vying for a government contract, vendors hope to avoid the need for protest and litigation. But solicitation documents aren’t perfect. Often, the evaluation process isn’t either. When issues arise, vendors are left in a tricky position: Do you dispute the issue during the procurement process, possibly angering the people tasked with evaluating your bid? Or, do you abide by the solicitation documents as written and raise the issue later if you aren’t the winning bidder?
• Don’t Wait To Raise Known Procurement Defects
At the federal level and in many states the answer is clear; regulations require vendors to alert the procurement authority to patent defects at the earliest opportunity or forever waive the right to do so. Missouri law contains no such requirement, though standard solicitation terms provide a mechanism for vendors to ask questions during the solicitation period. This has historically permitted vendors to avoid the above dilemma by waiting to complain of defects in the solicitation documents during a bid protest and/or litigation.
Recently, however, intervening vendors competing in state government bid protest litigation have successfully obtained dismissal of their competitors’ procurement protests by arguing that the failure to alert the Missouri Office of Administration (OA) to identified problems in the solicitation documents early on constituted a waiver of any claim based on those problems. In the wake of such decisions, OA has begun to cite the failure to complain of defects during the solicitation period as a basis for denying bid protests. In light of these developments, vendors should alert OA to any perceived defects in solicitation documents as early as possible to protect their legal rights.
• Consult With Counsel Early To Ensure You Timely Identify Your Protest Grounds
This and other legal developments highlight the importance of involving experienced counsel early when a bid protest is likely. Last year, in State ex rel. Robison v. Lindley-Myers, the Missouri Supreme Court reversed longstanding precedent and held that parties to all administrative proceedings (including less-formal proceedings like bid protests, which lack many features of litigation) must exhaust their administrative remedies before filing a lawsuit. While the full ramifications of this ruling are still playing out, it has begun to have effects in bid protest litigation.
The practical effect of this ruling is that a disappointed bidder must raise all its legal arguments during the bid protest process or risk losing the right to raise them in subsequent litigation challenging the results of the defective procurement. In Missouri, bid protests must be filed within 10 business days of a contract’s award. Because a disappointed bidder often won’t have access to its competition’s bid until the award is made, there is little time to evaluate potential legal claims and prepare a compelling bid protest. The need to exhaust remedies has heightened the importance of a thorough and persuasive bid protest, since an awarded contract may well go into effect before a disappointed vendor can reach the courthouse. The above-noted need to raise defects in solicitation terms even before submitting a bid likewise reduces the time to contemplate legal theories and highlights the importance of consulting with counsel early.
Stinson’s government contract attorneys can help. We have experience dealing with OA at all stages of the procurement process and identifying viable grounds for protest. If you are involved in a procurement where the need for a bid protest is likely, contact us today.