We previously published an overview of the bid protest procedures in the State of Alabama and noted that the existing laws and regulations were repealed and replaced effective October 1, 2022. This article provides a brief update on these revised statutory and regulatory processes and procedures that bidders should be aware of.
Applicability of the New Laws and Regulations
The new bid protest procedures apply “to contracts solicited and entered into after October 1, 2022” (Ala. Code § 41-4-112). Any bid protests of contracts solicited and entered into prior to that date remain subject to the prior procedures.
The new procedures are generally applicable to “every expenditure of public funds by a governmental body of this state under a contract for supplies or services,” except as otherwise specifically provided by statute.
Protests Under the New Laws and Regulations
The new bid protest statutes create the Office of the Chief Procurement Officer within the Alabama Department of Finance and centralize authority over the protest process in an appointed chief procurement officer.
A bidder or offeror may protest either the solicitation or the award decision issued by a state agency. A bona fide prospective bidder or offeror may protest the solicitation or an amendment to the solicitation within 14 days of issuance of the solicitation or amendment being protested. Similarly, a bona fide actual bidder or offeror may protest within 14 days of the date of the award or notification of intent to award, whichever is earlier.
Any protest “shall be in writing, be filed with the Chief Procurement Officer, and set forth the grounds of the protest and the relief requested with enough particularity to give notice of the issues to be decided” (Ala. Code § 41-4-161). The written protest must also identify the procurement at issue, provide contact information for the protester and protester’s representative, and provide supporting documentation or evidence to substantiate the protest claims (Ala. Admin. Code § 355-4-6-.01).
The new bid protest statutes also appear to grant interested parties the right to intervene in a filed protest.
When a protest or an appeal has been timely filed, the state generally may not proceed with the solicitation or award until after a final decision has been issued, absent specific circumstances.
Appeals of Protest Decisions
Under the new bid protest procedures, a protester may appeal an adverse decision from the chief procurement officer to the director of finance (Ala. Code § 41-4-164). Any such appeal “shall be made in writing within five days of receipt of the adverse decision.” A written decision on the appeal shall be issued within 14 days of receipt by the director of finance and shall hold unlawful or set aside any decision issued by the chief procurement officer that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.”
Following the exhaustion of all administrative remedies, a protester may seek relief in the Circuit Court of Montgomery County to prevent the execution of any contract entered into in violation of the law (Ala. Code § 41-4-168).