Bradley has been publishing an ongoing survey of state-level bid protest processes and procedures (see, e.g., our posts on “Bid Protests in the District of Columbia,” “Bid Protests in New York,” “Bid Protests in Virginia,” and our “Update on Bid Protests in Alabama”). For the next state in this series, we focus on the bid protest procedures in Georgia.
What Rules Apply?
- Depending on the entity conducting the procurement and the source of the funds for the procurement, a mixture of federal, state, and local procurement laws can apply.
- Georgia state purchasing statutes apply to most Georgia state agency procurements (seeO.C.G.A. § 50-5-50, et seq). These Georgia statutes provide procedural and substantive rules for procurements, which may impact protest strategy.
- The Georgia Department of Administrative Services (DOAS) administers most state agency procurements. DOAS published the Georgia Procurement Manual (GPM), which imposes an additional layer of substantive and procedural rules upon state procurements and provides Georgia’s protest policy.
- Some state agencies and quasi-state entities procure independently and may have different rules and procedures for procurements and protests. For example, DOAS does not maintain statutory authority to consider protests for: (1) University System of Georgia regarding public works; (2) Georgia Department of Transportation regarding construction and public works; and (3) certain government authorities, such as the Georgia Technology Authority.
This article focuses on DOAS administered procurements and the protest procedures in the GPM.
Who May Protest?
- An interested supplier may file a written protest challenging a state entity’s compliance with applicable procurement procedures subject to the interested supplier’s compliance with law, regulation, and procurement policy (GPM, 6.5, Step 4).
- An “interested supplier” is defined as an actual or prospective bidder or offeror with a direct economic interest in the procurement. In challenges relating to the evaluation of bids and proposals and the award of contracts, this generally means a bidder or offeror that would potentially be in line for award if the protest were sustained.
When Must a Protest be Filed?
- Protests must be received within 10 calendar days after the protesting party knows or should have known of the occurrence of the action that is protested, or by the protest filing deadline located in the table below, whichever date is earlier (GPM 6.5.7).
|Protest Filing Deadlines
|Type of Protest
|Protest Filing Deadline
|Challenge to Competitive Solicitation Process
|$25,000 to $249,999.99
|One business day prior to the closing date and time of the solicitation as identified on the GPR.
|$250,000.00 or greater
|Two business days prior to the closing date and time of the solicitation as published on the GPR.
|Challenge to Sole Source Notice
|Prior to closing date and time of the Sole Source Notice as published on the GPR.
|Challenge to Consortium/Cooperative Purchase Notice
|Prior to closing date and time of the Notice of Intent to Purchase from a Consortia/Cooperative as published on the GPR.
|Challenge to Results of RFOC
|The protest notice must be filed within ten calendar days of the date the RFOC List of Qualified Contractors is posted.
|Challenge to an Intended or Actual Contract Award as posted in State Entity’s NOIA
|$25,000 to $99,999.99
|The protest notice must be filed within five calendar days of the date the NOIA is posted.
|$100,000.00 to $249,999.99
|The protest notice must be filed within five calendar days of the date the NOIA is posted. The supplier has an additional five calendar days to complete and submit supporting exhibits, evidence or documents with desired remedy to DOAS.
|$250,000.00 or greater
|The protest notice must be filed within ten calendar days of the date the NOIA is posted.
|Challenge to an Actual Contract Award State Entity was not required to post NOIA
|Less than $100,000.00
|The protest notice must be filed within ten calendar days of the date the NOA is posted.
- The DOAS will not consider untimely protests absent evidence of malfeasance or administrative error by the state entity that substantially impaired an interested supplier’s ability to file a timely protest.
- In the event that a state entity does not provide access to records included in the register of proposals or the administrative review within one business day of issuance of the Notice of Intent to Award, the interested supplier may file, within the filing period, a request for extension of the filing period to extend the protest period by the number of days that it takes for the state entity to produce the records beyond the first business day.
- If a state entity does not provide timely access to records other than those that comprise the register of proposals or administrative review, the interested supplier is required to file a protest within the filing period, indicating the failure of the state entity to provide timely access to records and reserving the right to file an amended protest upon production of such records.
- If an interested supplier fails to file a protest by the applicable deadline, DOAS may, at its discretion, deem such failure as the supplier’s voluntary relinquishment of any grounds the supplier may have for protesting through DOAS’ protest process or through subsequent litigation.
- A Checklist for Bid Posting Times and Protest Filings can be viewed on the DOAS State Purchasing website.
What Must the Protest Include?
- At a minimum, the protest must be submitted in writing and must include the following: (1) the name and address of the protestor; (2) appropriate identification of the solicitation/sole source notice/consortia or cooperative notice; (3) a statement of reasons for the protest; (4) supporting exhibits, evidence or documents to substantiate any claims unless not available within the filing time (in which case the supplier must proceed to file the protest within the filing period identified below, but state the expected availability of the material); and (5) the desired remedy (GPM 6.5.5).
- DOAS requires a protesting supplier to identify all grounds for protest during the protest filing period.
- DOAS, at its discretion, may deem issues not raised in the protest filing period as voluntarily relinquished by the protesting supplier.
- After the protest filing period expires, any grounds for protest voluntarily relinquished by the protesting supplier may not be introduced by the protesting supplier at any time during the protest process or any subsequent litigation.
Is There a Stay During the Protest?
- When a protest challenging the competitive solicitation process has been timely filed at least one business day prior to the closing date and time if the solicitation is under $250,000 or two business days prior to the closing date and time if the solicitation is $250,000 or greater, the solicitation will not close until a final decision resolving the protest has been issued, unless the State Purchasing Division deputy commissioner makes a written determination that the closing of the solicitation without delay is necessary to protect the interests of the state (GPM 6.5.8).
- When a protest challenging a sole source notice, consortium or cooperative purchase notice, or an intended contract award has been timely filed, the state entity will not proceed to actual contract award unless the State Purchasing Division deputy commissioner makes a written determination that the issuance of a contract or performance of the contract without delay is necessary to protect the interests of the state.
- If it is determined that it is necessary to proceed with contract performance without delay, the supplier with this contingent contract may proceed with performance and receive payment for work performed in strict accordance with the terms of the contract; however, such supplier will not be entitled to reimbursement for any capital outlay costs or other up-front expenditures incurred in performing the contract.
When Will a Decision on the Protest Be Issued?
- The State Purchasing Division deputy commissioner will issue a written decision on the protest “as expeditiously as possible after receiving all relevant requested information from the state entity, issuing officer, and suppliers” (GPM 6.5.9).
What Are the Appeal Procedures?
- All protest decisions concerning procurements with an estimated value of $100,000 or more will be subject to formal review by the DOAS commissioner upon request (GPM 6.5.11).
- In the event the estimated value of the procurement is less than $100,000, it will be within the DOAS commissioner’s discretion whether such request for formal review will be granted.
- Any request for formal review must be received by the DOAS commissioner within three business days of the issuance of the protest decision.
- The request for formal review must be in writing and will identify any errors in the protest decision, as well as the factual and legal grounds upon which reversal or modification of the protest decision is deemed warranted.
- The parties involved in the protest have a right to a hearing before the DOAS commissioner.
- The DOAS commissioner will decide the protest “as expeditiously as possible after receiving all relevant requested information.”
- The decision of the DOAS commissioner will be the final DOAS action regarding the protest.
- Protesters may seek judicial relief through the applicable Georgia courts, once they have exhausted the administrative remedies afforded them through the DOAS protest process.