When bidding on public projects, submitting a bid can waive a protest. Here’s why:
According to the Federal Acquisition Regulation, Bidders are required to raise problems with bid specifications prior to submitting bids on federal projects: “Protests based on alleged apparent improprieties in a solicitation shall be filed before bid opening or the closing date for receipt of proposals.”
This rule has been enforced for 40 years, based on the Government Accountability Office’s ruling in Patterson Construction Co.: “Bidder who participates in a procurement through the point of bid opening without objection must be deemed to have acquiesced in the terms and conditions as set out in the invitation.”
This rule is being followed in states as well. In Kentucky, protests are denied if they were filed after bid opening but were about a bid specification. It is the second most common reason for denial. (See Waiver of Protest to Solicitation section in the Kentucky Finance Cabinet’s Protest Determinations – Topical Index.)
The Ohio Vendor Handbook states the federal rule almost verbatim: “Any bidder who is not in agreement with the competitive bidding process may file a protest. If protesting a bid (ITB, RFP or RAQS), the protest must be filed prior to the scheduled date and time of bid opening.”
Reason behind the rule:
While the rule seems harsh, it has a good reason. Protest gives the public agency a chance to correct a mistake. If there is a bad bid specification, a protest before bid opening gives the agency a chance to fix the problem. Once bids are submitted, though, every bidder has agreed to be bound and evaluated by the bid specifications.
No finger crossing allowed:
Bidders aren’t allowed to submit a bid, hoping they win an award and cross their fingers that a bad specification doesn’t hurt them, but then complain about the specification when they don’t receive the award.
If you have a problem with a bid specification, you will need to address that before submitting a bid. Otherwise, you will have waived your protest against the specification.
The law firm of Dressman Benzinger LaVelle, has offices in Cincinnati, Ohio, Crestview Hills, Kentucky, and Louisville, Kentucky.
« Back to news