This is part one of a three-part series discussing state-level bid protests in the DMV.
For a contractor who just expended significant time and money to bid on a DMV state-level government contract, only to watch the award go elsewhere, disappointment is understandable. But is this the end? What if the contractor believes that the state agency got it wrong? Can the contractor do anything? If so, what?
While federal bid protest authorities are perhaps more widely known and are largely uniform across agencies, state-level bid protest processes differ greatly from jurisdiction to jurisdiction and, often, even from agency to agency in the same jurisdiction. Beyond the differing procedures, a potential protester should be prepared to deal with: ambiguous or unhelpful rules for filing; the insufficient, incomplete or untimely production and sharing of agency documents; the opportunity to present argument to an independent adjudicator; and the suspension of performance of the awarded contract while the protest is considered.
We will summarize the fundamental features of the bid protest process for each jurisdiction in the DMV (District of Columbia, Maryland and Virginia). This first segment addresses the authorities and rules for D.C. state-level bid protests.
D.C.’s bid protest process has many features that distinguish it from Maryland’s and Virginia’s. While the procuring agency itself is the initial protest forum for most Maryland and Virginia bid protests, for example, in D.C., the Contract Appeals Board (DCCAB) is the starting point for protests unless an exception applies. There are also significant differences between the jurisdictions for other issues, such as the protester’s access to information, the involvement of political officials and the remedies available to a successful protester.
Generally Relevant Law
Relevant statutes in DC include Title 27 of the D.C. Municipal Regulations (D.C.MR), Title 2 of the Code of D.C. and the Procurement Practices Reform Act of 2010.
Authority to Issue Solicitations and Make Awards
The mayor of D.C. delegates contracting authority to the chief procurement officer (CPO), who presides over the D.C. Office of Contracting and Procurement (OCP). The CPO subdelegates its contracting authority to contracting officers (COs). Generally, COs under the OCP issue solicitations and make awards, but exceptions apply. For example, the Department of General Services (DGS), not OCP, is responsible for the procurement of facilities and facilities maintenance.
D.C. posts its solicitations on the OCP website but excepted agencies, like DGS, post their solicitations on their own websites.
In addition to the procuring agency conducting its evaluation of the offerors, some contract awards may require additional approval before the award may be issued to the apparent awardee. For example, an award of any multiyear contract, or contract with a 12-month base period exceeding $1 million, must be approved or “deemed approved” by the D.C. City Council.
Initial Protest Forum
Generally, the DCCAB is the initial protest forum. However, certain excepted agencies and types of procurements are carved out from its jurisdiction. Nonetheless, these excepted agencies may still have an agreement with the DCCAB that contains different procedural requirements. For example, they may require any protests of the excepted agency’s decisions to immediately go to the DCCAB, an offeror to go through an agency level process first that may or may not be permitted an appeal right to the DCCAB or full administrative exhaustion with the agency itself. These agreements are specific and must be considered and reviewed carefully to ensure all required procedures are followed precisely so the contractor can avoid losing any rights.
Time to Protest
Generally, protests challenging the terms of a solicitation must be filed with the DCCAB before bid opening or the deadline for receipt of proposals. Other protests, such as those challenging an award, must be filed “not later than 10 business days after the basis of protest is known or should have been known, whichever is earlier.”
Excepted agencies often have different timing requirements, and even if the excepted agency has an agreement to resolve protests with the board, the protest generally needs to be filed with the board within the time prescribed by the agency’s particular regulations. If no such agreement exists between the excepted procuring agency, then the timeliness rules may be provided in the agency-issued solicitation or elsewhere in the agency’s regulations.
Because protests must be filed timely and can be dismissed if not, contractors should contact experienced counsel as soon as possible to discuss possible protest routes.
Access to Information
When a protest is filed at the DCCAB, the agency must, within 20 calendar days of acknowledging the protest, file an agency report. The agency report includes relevant documents, such as copies of bids/proposals and evaluation reports.
If the bid protest involves protected information, the DCCAB has a protective order process that allows protester counsel to access protected information while prohibiting such access to the actual contractor protesting the award decision.
Limited discovery sometimes is conducted. In such cases, the DCCAB may require an evidentiary hearing and issue subpoenas, which could be enforced by the D.C. Superior Court.
For an agency-level protest before an excepted agency, unless the agency’s regulations or rules provide for some type of agency report, the protester may need to make a D.C. Freedom of Information Act request to obtain additional information.
Stay of Performance
If the procurement CO receives notice that a DCCAB protest has been filed while the competition is ongoing (that is, before an award is issued), the CO may not issue an award. But if an award has been issued and the CO receives notice of a related DCCAB protest within 11 business days after the date of award, the CO is required to immediately direct the awardee to cease performance under the contract and suspend any related activities that may result in additional obligations being incurred by the District under the contract.
This suspension, called a stay, may be overridden by the agency director but must be accompanied by a written determination that is supported by substantial evidence, demonstrating that “urgent and compelling circumstances that significantly affect interests of the District will not permit waiting for the decision of the Board concerning the protest.” A protester may challenge this determination to override the stay before the DCCAB within five business days of receiving the determination.
For excepted procurements and agencies, specific agency regulations may also provide a stay of contract performance. Otherwise, the contractor may request a stay from the D.C. Superior Court by means of a preliminary injunction.
Protest Procedure
After a DCCAB protest is initiated and the agency provides the agency report within 20 days of receiving the protest, the protester has five calendar days to compel the agency for additional information and seven business days to respond to the agency report. Thereafter, the board may seek further filings from either the agency or the protester or may schedule a hearing seeking further factual or legal development. Altogether, litigants can typically expect a decision in writing within 60 business days of the protest filing date.
Available Remedies
The DCCAB may order the procuring agency to:
- Terminate-for-convenience the awarded contract;
- Re-compete the contract;
- Issue a new or amended solicitation; or
- Not exercise a contract option.
However, the DCCAB will not order an agency to award the contract to a specific bidder or offeror. Under certain circumstances, the protester may recover bid/proposal preparation costs.
Reconsideration or Appeal of DCCAB Protest Decision
A protester who is unhappy with the DCCAB’s protest decision has two options:
- File a motion for reconsideration if it seeks clarification, discovers new evidence or believes that the decision contains technical, factual or legal errors
- Appeal the DCCAB’s decision to a court of law for judicial review.
Regardless of the method, the protester is subject to time constraints and may not automatically receive a stay of the board’s decision. Instead, the movant must request a stay and demonstrate good cause for doing so. As a result, it is important to contact experienced counsel as soon as possible to discuss possible appeal rights and options.
Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. The author has provided the links referenced above for information purposes only and by doing so, does not adopt or incorporate the contents. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS. Please contact the author if you would like to receive written advice in a format which complies with IRS rules and may be relied upon to avoid penalties.
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