California's procurement process for consulting and services contracts requires transparency and fairness, but irregularities can undermine the award process. Filing a bid protest is a key mechanism to challenge such flaws. This article discusses California bid protest procedures for consulting and services contracts awarded through Requests for Proposals (RFPs), covering viable protest grounds, timelines, written submissions, Department of General Services (DGS) procedures, and practical steps.

Understanding Bid Protests for Consulting and Services Contracts

A bid protest is a formal challenge by an offeror responding to an RFP who believes the state's award process for a consulting or services contract violated legal or procedural standards. Protests regarding consulting services contracts (e.g., architectural, engineering, environmental, or management consulting) awarded via an RFP are governed by California's Public Contract Code (PCC) and Code of Regulations (CCR).

PCC § 10344(a) mandates that contracts be awarded to the proposer with the highest score based on the RFP's published evaluation criteria, ensuring objective and transparent evaluations. PCC § 10345(b) establishes the protest timeline, requiring the Notice of Proposed Award to be posted publicly for five working days, during which protesters must file their intent to protest. Protesters (also known in California as “protestants”) bear the burden of proof to demonstrate a material error, such as failure to follow statutes or RFP provisions. Protests are filed with the DGS Office of Legal Services (OLS) and the awarding agency, with potential escalation to a hearing officer if the agency does not voluntarily take corrective action to resolve the protest.

Grounds for Protesting the Proposed Award of a California Consulting or Services Contract

A successful bid protest must articulate specific protest grounds based on the agency's failure to follow applicable law or the RFP's stated procedures, and demonstrate the protester should have been the highest-scored proposer. Common grounds include:

1. Non-Compliance with RFP Specifications: A protest may be sustained when the awarded proposal did not meet the RFP's requirements (e.g., is nonresponsive, contains a material exception, or proposes a material deviation), yet was selected over a compliant proposal.  
2. Failure to Follow Stated Evaluation Criteria: An agency must award consulting and services contracts to the highest-scored proposal based exclusively on the evaluation criteria published in the RFP. Disregarding stated evaluation criteria undermines transparency and objectivity and may support a protest seeking re-evaluation or re-award to the rightful highest-scored proposer.
3. Unstated Evaluation Criteria: An agency's use of undisclosed criteria to evaluate proposals may be contrary to the RFP's stated requirements and undermine transparent evaluation and scoring, providing a potentially legitimate basis of protest.
4. Arbitrary or Capricious Evaluation: An evaluation that lacks a rational basis or was biased may result in proposals being improperly evaluated and inaccurately scored, resulting in a flawed award decision. Notably, mere disagreement with scoring is not sufficient to sustain a protest; proof of a material error is required.

Bid protests thus safeguard fairness and transparency, promote compliance with California law, and ensure contract awards align with RFP criteria.

California Timelines for Filing a Bid Protest

The protest process is fast-paced and strict adherence to timelines is critical, as untimely protests are excluded. Key deadlines include:

• Notice of Intent to Protest: Unless otherwise stated in the RFP, the notice of intent to protest must be submitted within 5 working days after public notice of the proposed award to the awarding agency's contracting official (potentially the person who issued the notice of intent to award) and DGS Office of Legal Services (OLS) (typically via email at [email protected]). This notice must be made in writing (email being the easiest acceptable means of delivery), and:
• include the protesting company's name, address, email, and phone numbers;
• identify the number of the RFP;
• state the name of the agency, department, or division issuing the RFP; and
• provide a clear statement of the basic protest grounds.

·        A prudent protester will request copies of the relevant proposals and scoring sheets in the notice of intent to protest, if they are not already publicly accessible. If timely received, they may be useful in assessing the merit of the protest.   

• Detailed Written Statement of Protest: A full and complete written statement of protest, including supporting documentation, must be submitted within 5 calendar days after filing the notice of intent to protest. This statement must detail all protest grounds and cannot be amended later.

Written Submissions: Crafting a Compelling Protest

The Detailed Written Statement of Protest is the cornerstone of your challenge and must comply with all legal and procedural requirements. Only issues raised in this document can be considered in the protest resolution stage. Here's how to prepare:

1. Structure the Statement:
• Introduction: Identify your company as an offeror in response to the RFP, state your intent to protest, and assert your claim to be the highest-scored proposer.
• Grounds for Protest: Fully detail the protest grounds and explain how each ground represents a violation of California law.
• Factual Support: Provide evidence (e.g., RFP, proposal, evaluation sheets, communications, etc.) to prove material errors, such as non-compliance with RFP criteria.
• Relief Requested: Specify remedies, such as re-evaluation or re-award.
• Contact Information: Include your company's name, address, phone number, and email (and indicate if email service is accepted).
2. Include Exhibits: Attach documents (e.g., the RFP, your proposal, the Notice of Proposed Award) or agency correspondence to substantiate protest arguments.
3. Serve All Parties: Send copies to DGS OLS, the awarding agency, and any RFP-specified parties via email if accepted, or else by mail, courier, or personal delivery.

Pannier Law, PC, can help your company in all phases of the protest process, including determining whether to file a notice of intent to protest, deciding whether to move forward, and crafting a compelling Detailed Written Statement of Protest.

The California Department of General Services (DGS) Bid Protest Process

Protests are managed by the DGS OLS. The process ensures statutory compliance and includes:

1. Initial Review:
• DGS OLS acknowledges the Notice of Intent to Protest, and requests a detailed statement within five calendar days.
• DGS assesses jurisdictional issues, dismissing the protest if the protester was not a proposer, does not claim to be the highest-scored proposer, or filed its protest late.
2. Resolution:
• The agency may take corrective action in response to the protest, thereby resolving the protest. This is often an ideal outcome.
• If no corrective action is taken, a hearing officer determines whether to resolve the protest by written submission (most common) or oral hearing (rare).
• Typically, a notice setting a due date for written submissions will be sent to all interest parties.
3. Agency Response and Interested Party Responses:
• Notice is provided to the agency and all interested parties (e.g., the proposed contract awardee), who may submit a written argument opposing the protest. The hearing officer will set a deadline for these responses.
• The protests and any opposing responses constitute the documentary record. The protester should not expect an opportunity to rebut the responses.    
4. Final Decision:
• The hearing officer evaluates the protest and issues a written decision within 30 days of final evidence submission.
• The hearing officer's decision constitutes a final administrative decision and there is no administrative appeal.

Practical Steps to File a Bid Protest

Follow these steps to file a protest:

1. Monitor the Award: The clock starts when the Notice of Proposed Award is issued.
2. Initial Assessment:
• Consider whether your proposal was properly evaluated.
• Consider whether the proposed awardee's proposal was properly evaluated.
• Analyze whether your proposal would have been selected for award had proposals been properly evaluated.
3. File Notice of Intent:
• Submit a notice of intent to protest within 5 working days of award to DGS OLS ([email protected]) and the awarding agency, citing violations of the Public Contract Code (e.g., PCC § 10344, PCC § 10345).
4. Gather Evidence:
• Collect RFP documents, your proposal, scoring sheets, and communications to support claims of material errors.
• Request proposals and scoring sheets if they're not publicly available.
5. Draft Detailed Statement:
• Submit the Detailed Written Statement of Protest within 5 calendar days of filing the Notice of Intent to Protest, detailing violations and including exhibits, to DGS OLS, the awarding agency, and any RFP-specified parties.

Bid protests are complex and time-sensitive. Contact William Pannier at Pannier Law, PC, or visit pannierlaw.com for experienced representation to challenge an improper award.

Disclaimer: * This article is provided for information purposes only. It does not constitute legal advice. It is not intended to form an attorney-client relationship. Any legal advice should be sought from an attorney. Consult a qualified attorney for advice specific to your situation. *

About the Author: William Pannier is the founder of Pannier Law, with over 20 years' experience as a Government Contracts attorney.