1. Pillsbury Winthrop Shaw Pittman LLP The Basics of Bid Protests on Federal and California State Procurements Christopher R. Rodriguez

2. What is a Bid Protest and Who Can File One? A bid protest is written objection filed by an interested party whose interests have been or will be harmed by a procurement procedure or a contract award. Under California law, protestant must typically show that, if rules followed, it would have been the lowest responsible bidder. See Cal. Pub. Cont. Code §§ 10345, 12102(h). Under federal law, protestant must be an Interested Party [A]ctual or prospective bidder or offeror whose direct economic interest would be affected by the award of the contract or by failure to award the contract.... 31 U.S.C. § 3551(2)(A); Am. Federation of Govt Employees v. United States, 258 F.3d 1294, 1302 (Fed. Cir. 2001). 1 | Anatomy of a Bid Protest

3. What are Common Reasons for a Protest? Defects or ambiguities in the procurement documents Examples: scope ambiguous, unfairly restrictive requirements Must protest (or at least object) before proposals/bids are submitted or defect is waived Utilize Q & A procedure to clarify Competitors bid is defective/non-responsive Competitor lacks minimum qualifications Competitors bid is understated because it fails to account for full scope Inconsequential deviations from bid specifications may be ignored (test is whether deviation affected the price of the bid or allowed an advantage to one bidder) Competitor is not a responsible bidder 2 | Presentation Title

4. What Remedies are Available? Goal is usually to effect a re-bid Highly unusual for protestant to obtain contract award for itself Agency always has discretion to re-bid or abandon the project Injunction may be available to postpone award and performance of contract pending litigation A protesting bidder may have claim for damages, but only for bid preparation costs Lost profits are not available 3 | Presentation Title

5. Federal Protest Procedures Federal Protests May Be Filed With Any of Four Separate Bodies (1) Awarding agency usually futile but sometimes a required first step relatively quick and inexpensive (2) General Accounting Office (GAO) power to hear pre-award and post-award protests award process usually stayed while protest is heard protestant entitled to review all agency documents and competing bids (3) U.S. Court of Federal Claims pre-award protests injunctive relief available (4) Federal Circuit Court of Appeal Geographic convenience 4 | Presentation Title

6. California Protest Procedures Protests must be filed quickly after notice of intent to award Protests must set forth all of the grounds upon which protest is based Procedures vary depending upon the type of procurement State Public Works Contracts State Service Contracts State Goods/Telecom/Electronic Data Processing Contracts Local Agency Contracts 5 | Presentation Title

7. Other Considerations Public Records Act Requests Protection of Confidential Information 6 | Presentation Title