Bid Protests
Public works projects are governed by specific rules relating to the advertisement for bids and the award of contracts to qualified bidders. Nevada requires public works contracts to be awarded to the lowest reasonable and responsible bidder. That does not mean that the person who submits the lowest bid is automatically awarded the contract. How does the state or public entity ensure that the government’s desire to obtain the lowest price meets the applicable need for safety and quality?
The law requires that public works projects of $250,000 or more be awarded to the contractor that submits the “best bid.” The best bid is the lowest bid that is submitted by a “responsive and responsible” contractor who; has been determined by the public agency to be a qualified bidder, provides a certificate of eligibility from the State Contractors Board, and who submits a signed affidavit. The bid must be no more than 5 percent higher than the bid submitted by the lowest responsive and responsible party who does not provide the requisite certificate or affidavit. With respect to the first part, this permits the government body to be subjective in its determination of who is the “best” bidder.
Las Vegas Bid Protest Attorney
Often times, the governmental agency will reject what appears to be the best bid on a project by declaring that the bid is “nonresponsive” to the advertisement for bids. This could be due to something as simple as a response to a question on the bid application, an overlooked portion of the scope of work, or information relating to subcontractors or certain requirements relating to labor. It could also be that your bid was improperly rejected.
In some instances, such as when the amount of the contract is between $25,000 and $100,000, the government can reject a bid if the government determines that the quality of the services, material, equipment or labor offered does not conform to the approved plans or specifications; the bidder is not responsive or responsible; or the public interest would be served by such a rejection. Again, this allows the government to be somewhat subjective in making the decision regarding which bid to accept – however any rejection cannot be arbitrary or capricious. If your bid was rejected by the public entity on the grounds that it was not responsive or responsible you should immediately seek the assistance of an attorney that is experienced in filing bid protests to protect your rights.
What do you do if you Believe your bid was Improperly Rejected?
First, you should obtain copies of the bid documents of other bidders from the public entity. Except for proprietary information, a bid or proposal is a public document that may be examined once notice of award has been posted.
If, after examining your competitors bid documents, you believe your bid was improperly rejected you must take action immediately in the form of a notice of protest of award or “bid protest” with the authorized representative designated by the public body. You must file your protest within 5 days after the date the award was entered on the bid record. An attorney with experience handling bid protests should be consulted to assist you in filing a bid protest.
A notice of bid protest operates as a stay of action in relation to any contract until a determination is made by the public body on the protest.
If you file a bid protest, you must also post a bond in an amount equal to 25% of the total value of the bid you submitted. If the bid protest is upheld and the contract is cancelled, your bond will be returned. However, if the bid protest is rejected and the award of the contract is upheld, a claim may be made against the bond or any other security by the public body in an amount equal to the expenses incurred and other monetary losses suffered by the public body. Any amount claimed will be deducted from the bond amount. Any bond proceeds or other security remaining will be returned to the person who posted the bond.
If the bid protest is denied, you must decide whether or not to pursue other legal remedies. One option to consider is the filing a petition for an injunction against the public body to prevent the work from proceeding. If the work is allowed to go forward your bid protest could be moot. However, you might still be entitled to other damages. Therefore, it is very important that you consult with an experienced attorney to assist you.
The Wright Law Group, P.C. has more than 20 years construction litigation experience, including bid protests, and is well equipped to assist you in handling your case. Please call us at 702-405-0001 to schedule a consultation.