Bid Protests

Volume 5, Chapter 9

INTRODUCTION

This chapter addresses how to handle bid protests that arise during the competitive bidding period.

9.1 BID PROTESTS

References:

- Long Form, Instructions to Bidders.

A bid protest may be lodged against the lowest bidder, against the next lowest bidder if the Facility rejects the lowest bid, or against the selection of the lowest responsible bidder. The required bidder procedures for filing a protest are described in the Instructions to Bidders (see Construction Contract Templates Page). This section describes University procedures for resolving bid protests. (See Bid Protest Procedures Flow Chart.)
The University will complete its internal bid protest procedures before award of the contract.

9.1.1 Filing a Bid Protest

Any person or entity may file a protest related to the selection of a bidder by the University for the award of a contract. The protest must state the specific reasons and facts upon which the protest is based and must be in writing and received by the Facility office issuing the bidding documents, not later than 5:00 pm on the 3rd business day following:

If the Bid does NOT include Alternates: the date of the bid opening.

If the Bid does include Alternates: the date the bid results identifying the actual names of the bidders are posted in a public place.

9.1.2 Facility Review of the Protest

The Facility office in charge of issuing the bidding documents must investigate the basis for the protest, analyze the facts, hold an informal hearing if deemed appropriate, and issue a written decision within 15 days of receipt of the protest unless factors beyond the Facility's reasonable control prevent such a resolution, in which event such decision will be issued as expeditiously as circumstances reasonably permit. The Facility's decision must state the reasons for the action taken by the University. A copy of the decision shall be furnished to the protestor, the Bidder whose Bid is the subject of the Bid protest, and all Bidders affected by the decision.

Use the following guidelines for making the decision and writing the decision letter:

  1. Verify that statements in the decision letter agree with language in the bidding documents. Repeat the language verbatim, do not paraphrase. Include a reference where found in the Bidding Documents.
  2. Assign responsibility for the decision to the Facility administrator responsible for the project. Consult the Office of the General Counsel to help make the decision. Do not attribute the decision to the General Counsel (or anyone else).
  3. Inform protesters that they have a right to appeal the decision or if the decision upholds the protest. This information requirement is generally satisfied if the Instructions to Bidders is referenced (or, for Design Build, if the RFP is referenced).
  4. Send the letter by a means that provides proof of receipt.
  5. Include the reasons for the action taken by the University for the denial or upholding of the protest or the rejection of bids.
  6. Copy General Counsel, the Chair of the University's Construction Review Board, and the other bidder or bidders.

(See RD1.6 Sample Letter: Bid Protest Decision. Caution: The situations for bid protest decisions vary considerably; adapt this sample letter to the situation at hand.)

9.1.3 Construction Review Board Appeal

For informally bid projects Facility's decision is final and not appealable within the University.

For all other projects:

Bidder whose Bid is the subject of the protest, all Bidders affected by the Facility's decision on the protest, and the protestor have the right to appeal to the Construction Review Board if not satisfied with Facility's decision. The appeal must be in writing and shall specify the decision being appealed and all the facts and circumstances relied upon in support of the appeal. A hard copy of the appeal must be received by the Chair, Construction Review Board, not later than 5:00 pm on the 3rd business day following appellant's receipt of the written decision of Facility, at the following address:

Chair, Construction Review Board
University of California
Office of the President
1111 Franklin Street, 6th Floor
Oakland, CA 94607-5200
Attention: Associate Director, Design & Construction Policy

And, by email to:

constructionreviewboard@ucop.edu

A copy of the appeal must be sent to all parties involved in the Bid protest and to the Facility, to the same address and in the same manner as the original protest. An appeal received after 5:00 pm is considered received as of the next business day. If the final date for receipt of an appeal falls on a Saturday, Sunday, or University holiday, the appeal will be considered timely only if received by 5:00 pm on the following business day. The burden of proving timely receipt of the appeal is on the appealing party.

The Facility must determine the date on which a protestor receives the Facility's written decision on a bid protest because the time within which a bid protest appeal may be filed is measured from that date of receipt. The Facility should contact the protestor to confirm receipt of the decision or send the decision in a manner that will provide confirmation of delivery. (Section 7.2.3)

Hearing on the Appeal.

The Chair of the Construction Review Board will review the Facility's decision and the appeal, and issue a written decision, or if appropriate, appoint a Hearing Officer to conduct a hearing and issue a written decision. If a hearing is held, the hearing shall be held not later than the 10th day following the appointment of the Hearing Officer unless the Hearing Officer for good cause determines otherwise. The written decision of the Chair or Hearing Officer will state the basis of the decision, and the decision will be final and not subject to any further appeal to University. The Chair or Hearing Officer may consult with the University's Office of the General Counsel on the decision as to legal form.

Revised March 28, 2013 (Change No. FM 13-003-C)

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