Challenging a public award, on a very short clock.
Esshaki Legal Media TeamCurrent as of April 2022
A disappointed bidder may challenge an award, and the procedures are fast and
technical.
Grounds. A defective solicitation; evaluation inconsistent with the stated
criteria; award to a non-responsive bid; an improper responsibility
determination; unequal treatment of bidders; and undisclosed conflicts.
Timing. Challenges to the terms of a solicitation must generally be brought
before the bid deadline; challenges to an award within days of notice or of the
debriefing. Missing either deadline forfeits the protest regardless of merit.
Standing. An actual or prospective bidder with a direct economic interest —
generally one that would be in line for the award if the protest succeeded.
Forum. An agency-level protest, an administrative tribunal, or a court,
depending on the jurisdiction and the procurement.
Stay of award. Some regimes suspend performance automatically on a timely
protest; others require a separate application, and the balance of harms
includes the public interest in proceeding.
Remedies. Re-evaluation, re-solicitation, termination of the award, and in
some systems bid preparation costs. Lost profits are generally unavailable.
Practical assessment. Protests damage a relationship with the agency. They
are worth bringing where the defect is clear and the contract is significant,
and rarely otherwise.