By Bruce Jervis
Bidders on public construction contracts frequently have exaggerated impressions of their rights. Basically, a disappointed bidder has only the tools conferred by regulation and statute. And, those laws vary greatly among jurisdictions.
This was illustrated in the bidding on a fire station project in Missouri. The fire district bypassed the low bid without any determination that the bid was nonresponsive or the bidder was not responsible. Bid protest rights under Missouri state law are currently a topic of conflict and confusion, so the low bidder raised a constitutional challenge in the federal courts.
A federal appeals court ruled that the bidder was not entitled to due process of law in the administration of the procurement process. The fire district had reserved the right to reject any and all bids, so the bidder had no property interest in the contract.
In some forums, such as federal contracting, bid protest rights are extensive, formal and well established. In other jurisdictions, they are far more limited. With some local government contracting, protest rights appear nonexistent or informal at best. It is imperative for bidders to know their rights and utilize available remedies in a timely manner. What impediments have you encountered in dealing with questionable procurement practices? Your comments are welcomed.
