Preparation of competitive bids and proposals for Oregon procurements can take significant time and resources. Oregon government contracting entities such as state agencies, municipalities and school districts as well as special districts like ports often take months to develop and evaluate competing submittals and make decisions. In most circumstances, an unsuccessful bidder has little time to determine whether to protest a notice of intent to award and on what grounds.

Following is a discussion of what to do after a contracting entity has made an award decision. Protests that challenge a solicitation must generally be made before bids or proposals are submitted and within the time limits specified in the solicitation.

Information gathering

An unsuccessful bidder may have limited information, since a notice of intent to award a contract often includes little more than the identity of the successful bidder and the amount of the winning bid. A bid tabulation or abstract may also be available.

To obtain additional information, the unsuccessful bidder may want to consider an immediate public records request to the contracting entity for competing bids or proposals. But Oregon’s public records laws allow 15 days to provide documents, which may be too long to comply with protest timeliness requirements. As a result, records requests often seek an expedited response and note the short protest deadline.

Oregon’s public records laws may also conditionally exempt portions of a successful bid from disclosure, such as information designated as trade secrets or confidential proprietary data. If a contracting entity withholds information necessary to evaluate the propriety of the procurement decision, such withholding may establish a separate ground for protest.

The bidder may also want to consider a request for debriefing. A debriefing typically includes information on the evaluation of the protester’s proposal, the ranking of respective proposals, and the rationale for the award. Oregon procurement law, however, does not provide for a right to debriefing. Such debriefing, if any, will be provided for in the solicitation itself or at the voluntary discretion of the contracting representative.

Ultimately, the limited avenues to obtain timely award information demonstrate the potential importance of maintaining a positive ongoing relationship with contracting entities and their representatives. Such a relationship may enable an unsuccessful bidder to obtain award information more quickly and, as a result, make a more informed protest decision.

Administrative review

An unsuccessful bidder who decides to proceed with a protest generally must exhaust administrative remedies before seeking judicial relief. Failure to do so may bar a protest in trial court.

In most circumstances, the solicitation will describe when and how to obtain administrative review of a notice of intent to award. Relevant administrative rules may also describe when and how to obtain administrative review. Generally, a protest must be in writing, submitted within seven calendar days, and specify all protest grounds that are known (or should beknown). A protest will be sustained only if: (1) the successful bidder’s proposal was nonresponsive or the contracting entity committed a “substantial violation” of the solicitation, law, or regulation, and the protester was unfairly evaluated; and (2) the protester’s bid would have been the lowest bid or highest-ranked proposal, depending on the nature of the solicitation.

If a protest is not settled, the contracting entity must “promptly” issue a written decision.

A successful administrative protest does not mean that a protester is entitled to be awarded a contract. The contracting entity may take corrective action or even cancel the solicitation, depending on the circumstances. The protester reserves the right to separately protest the contracting entity’s new action, if any.

Judicial review

If an administrative protest is unsuccessful, the protester retains the right to seek review by a judge in court. A protester may want to consider an immediate request that the court stop the contract award through a temporary restraining order or preliminary injunction. If a protester fails to stop the award of the contract (and the contract is signed), a protester generally cannot prevent the successful bidder from performing the awarded contract. Instead, the protester is generally limited to the recovery of bid preparation costs such as overhead, employee time, out-of-pocket costs for bonds and insurance, and delivery costs. Notably, the court has discretion to award costs and attorney fees to the prevailing party, whether that be the protester or the contracting entity.

In determining whether to proceed with a protest (and potentially be exposed to a cost and fee award), a protester should be aware that mere disagreement with a contracting entity’s evaluation will not be enough. A judge will grant considerable discretion to the decision-making of the contracting entity and will not disturb a decision if it is supported by “substantial evidence.” Substantial evidence exists when the record, viewed as a whole, would permit a reasonable person to make the same decision.

A judge will more likely uphold a protest if the contracting entity violated the terms of the published solicitation documents or the law.

A successful judicial protest also does not mean that a protester is entitled to be awarded a contract. The contracting entity may take corrective action or even cancel the solicitation, depending on the circumstances. Again, the protester reserves the right to separately protest the contracting entity’s new action, if any.

Bid revival

There are circumstances in which unsuccessful bidders may be awarded completion contracts under prior procurements with or without protests. For example, when a successful bidder is terminated, either for cause or for convenience, a new procurement is not necessarily required. A contracting entity may simply request that prior bidders revive their earlier bids and, if so revived, enter into a completion contract.

Unsuccessful bidders with questions about whether and how to protest a notice of intent to award a contract should consult an attorney.

Column first appeared in the Oregon Daily Journal of Commerce on December 13, 2024.

This column is intended to provide readers with general information and not legal advice. Consult professional counsel for help regarding specific situations.