A QUICK Guide to Washington State BID Protests
In Washington state, an aggrieved party may challenge a contract award under the competitive bidding process. An aggrieved party is any bidder that has a substantial chance of receiving the award, an economic interest, and standing to challenge the award. Often, if the second lowest bidder is aware of a material irregularity or informality in the lowest bid, the second lowest bidder may submit a written bid protest. The timeframes to protest at the state and local government level are notoriously short and strict, so immediate attention in response to invitations to bid, bid openings and notices of intent to award is critical to a successful protest.
This article provides a concise overview of Washington’s public works bid protest procedures and remedies for unsuccessful bidders. Generally, there are three important steps for successful Washington state protests.
1. Check the Solicitation (the invitation to bid or request for proposals)
First, always consult the bid solicitation or request for proposals. The solicitation may include specific requirements, guidance or other key information regarding the procedures and remedies available to an unsuccessful bidder.
2. Washington Statute (RCW 39.04.105)
Second, RCW 39.04.105 (Competitive bidding—Written protests—Notice of contract execution), if carefully utilized, can buy the unsuccessfully bidder a little time to prepare a written protest.
Under RCW 39.04.105, bidders can request copies of all bids received by the municipality within two business days of the bid opening. If this request is timely made, the municipality must wait two “full business days” after providing the requested copies before it can execute the project contract. Then, once the requested bids are received, the protesting bidder has only two full business days to make a written protest. Note: Business days and full business days excludes intermediate Saturdays, Sundays and legal holidays.
3. Last Resort: Injunctive Relief in Court:
Lastly, after the statutory and solicitation options have been exhausted, and before the project contract is executed with the winning-bid party, the final option is to seek injunctive relief to temporarily halt the award of the project while the bid protest is considered by a Washington state court. Injunctive relief will generally consist of preparing a motion for a temporary restraining order and other required filings (e.g., summons, complaint, petition, etc.). If you find yourself at this stage, an attorney should be consulted without delay. Many Washington state superior courts have local rules governing these actions that should be reviewed with your attorney.
To learn more about A QUICK Guide to Washington State BID Protests, please contact Beresford Booth at info@beresfordlaw.com or by phone at (425) 776-4100.
