With the State anticipating a projected $3+ billion budget shortfall, the procurement budgets of its various agencies are almost certainly likely take a hit. Yet given the current COVID-19 crisis, Michigan, like other states, may have a unique (and, undoubtedly, urgent) need to procure goods and services—both those directly related to COVID-19, and those more routine in nature. The upshot of this is that if you are a disappointed bidder, or even considering preparing a response to a solicitation, you should inform yourself about the bid protest process.
Bid protests are handled in Michigan by the Department of Technology, Management and Budget. And the bid protest rules provide for the following, according to the Department’s website:
SPECIFICATION PROTESTS
A vendor should raise concerns about solicitation specifications during the question-and-answer period. If any vendor fails to protest a specification issue to the state with regard to proprietary or deficient specifications prior to the bid deadline, subsequent protests regarding specifications may be held to be without merit.
In fairness to bidders who meet specifications and to prevent delays in procurement, DTMB Central Procurement will not withdraw a recommendation to award or re-evaluate proposals when a protest maintains that the specifications were faulty or that a proposal exceeding specifications provided a better value than a lower proposal meeting specifications, unless the state determines that this action would be in its best interest.
HOW TO INITIATE A PROTEST
To initiate a protest of an award recommendation, a business must follow these steps:
- The protest must be received in writing by the date and time identified in the solicitation. If the published protest due date falls on a Saturday, Sunday, or state holiday, the protest may be submitted, by the published time, on the next state business day to be considered.
- The written protest should include the solicitation number and should clearly identify the facts believed to constitute an error in the award recommendation and the desired remedy.
- The protesting bidder should focus on identifying the following in their letter of protest:
- Any specific Michigan statute that was violated (such as the application of a required preference)
- Any specific procurement policy that was not applied (such as conflict of interest, fraud, or ethics violation)
- Any specific solicitation instruction that was not followed (such as the evaluation and award instructions)
Putting to the side the procedural issues involved in the bid protest process—which themselves could fill several blog posts—there are several unique grounds for filing a protest that are likely to arise as a result of the current crisis.
First, one can easily imagine a situation in which a contractor has submitted its proposal, wins the contract, yet, post-award, is suddenly staring down the inability to perform, due to supply chain issues, health and safety issues with performance personnel, or financial hardship. Second, in light of certain State-mandated steps that have been, or may continue to be, taken in response to COVID-19, bidders may come to the conclusion, pre-bid, that performance as set out in the solicitation is infeasible, such that filing a pre-award protest to the terms of the solicitation is a necessity. (As an aside, it will be interesting to see if COVID-19-related clauses begin working their way into State-issued solicitations).
This is surely a complex issue, and there are myriad other issues that will impact the bidding process for state contractors in these uncertain times, but the above are some basic considerations that warrant paying attention to. The author recently presented at a meeting of the ABA Section of Public Contract Law about state and local bid protests in the COVID-19 era, and has significant federal and state and local bid protest experience. If you would like more information about this topic, please contact us.
