How to file a bid protest

A protest challenges the process. Valid subject matter is confined to whether the agency followed the law and its own solicitation. It is not a re-scoring, and no forum will substitute its judgment for the evaluation committee's on a matter that was genuinely within the agency's discretion.

Things that are not a protest ground, no matter how strongly you feel about them:

• The winner's price is too low to perform the work. Unless the solicitation required a responsibility determination the agency demonstrably failed to make, a low price is the agency's risk to take.
• You have served this agency for fifteen years and deserved the renewal.
• Your proposal was better. Disagreement with a discretionary technical judgment, without a procedural error, loses.
• The winner is from out of state. Unless a local preference statute applied and was ignored.

There are also three separate protest venues with different rules, and they are commonly confused:

• Agency-level protest: filed with the procuring agency itself, usually with the purchasing director or a designated protest officer. Fastest, cheapest, and the first step in most state and local schemes. Often mandatory before any other route.
• State administrative or judicial review: an administrative hearing, a state procurement appeals board, or a state court, depending on the jurisdiction.
• Federal forums: the Government Accountability Office or the U.S. Court of Federal Claims, for federal procurements only. These do not hear protests of city, county or school district awards.

Find the protest procedure in the solicitation itself. Nearly every public solicitation contains a protest clause naming the officer, the deadline, the required contents and any bond. That clause governs.

Successful protests are almost always documentary and procedural. The pattern is: here is what the solicitation said, here is what the agency did, and the record shows they are different.

Evaluation inconsistent with the published criteria

The agency scored on something it never published, weighted factors differently than stated, or applied an unstated minimum. This is the most common winning ground because it is provable from the solicitation and the evaluation record.

Waiver of a material requirement for the awardee

The winner's bid was non-responsive (missing bid security, an unacknowledged addendum that changed price or scope, an unsigned bid form, a conditional price) and the agency accepted it anyway. Because responsiveness is judged on the face of the bid at opening and cannot be cured, this is a strong and clean argument. The standard is the one at FAR 14.301, echoed in state law: a bid must comply in all material respects with the invitation. See how to respond to an RFP.

The winner was ineligible

Not prequalified, not licensed, not registered where registration is required, debarred, or failing a stated mandatory qualification.

Improper nonresponsibility determination against you

The agency found you unable to perform without giving you an opportunity to address its concerns, or applied a standard never disclosed in the solicitation. Responsibility, unlike responsiveness, is curable, and skipping the opportunity to cure is an error.

Arithmetic or tabulation error

Bid tabulations are published. Extensions and totals can be checked. Scoring sheets sometimes do not sum. This is worth ten minutes of your time on every loss.

Defective, ambiguous or unduly restrictive solicitation

A specification written around one manufacturer with no "or approved equal", an experience requirement only the incumbent can meet, or two sections that conflict irreconcilably. Critically, this ground must be raised before bids are due. 4 CFR 21.2(a)(1) requires protests of solicitation improprieties apparent before bid opening to be filed prior to bid opening or the time set for receipt of initial proposals, and state schemes apply the same waiver logic. If you saw the problem, bid anyway, and lost, you have waived it.

Undisclosed conflict of interest or improper contact

An evaluator with a financial relationship to a bidder, or communications with one bidder not offered to all. Serious, but hard to prove without something concrete.

Assume every deadline in this area is short and unforgiving, and that missing it is fatal on its own.

State and local

Florida is the clearest published example and a fair illustration of the pace. Under § 120.57(3) of the Florida Statutes, a person adversely affected "shall file with the agency a notice of protest in writing within 72 hours after the posting of the notice of decision or intended decision", with Saturdays, Sundays and state holidays excluded from the 72-hour computation. The formal written protest is then due "within 10 days after the date the notice of protest is filed". Failure to file within those periods, or to post the required bond in time, waives the proceeding entirely.

Florida also gives you the most powerful consequence in the scheme: on receipt of a timely formal written protest, "the agency shall stop the solicitation or contract award process until the subject of the protest is resolved."

Other states run windows commonly between 3 and 10 business days from the posting of the notice of intent to award. Some run from the date of the debrief instead. The solicitation will say. Read it the day you submit and diary the date, because 72 hours is not enough time to find a lawyer, gather the facts and draft a filing from a standing start.

Federal: GAO

Under 4 CFR 21.2:

• Protests of solicitation improprieties apparent before bid opening must be filed prior to bid opening or the time set for receipt of initial proposals.
• All other protests must be filed not later than 10 days after the basis of protest is known or should have been known.
• Where a debriefing is required, the protest may not be filed before the debriefing, and must be filed not later than 10 days after the date on which the debriefing is held.
• After a timely agency-level protest, a subsequent GAO protest must be filed within 10 days of actual or constructive knowledge of initial adverse agency action.

"Days" at GAO means calendar days, with deadlines falling on a weekend or federal holiday moving to the next business day.

The federal automatic stay

The timing that matters most on a federal award is 31 U.S.C. § 3553(d)(4)(A). Contract performance is suspended if a protest is filed within the period ending on the later of 10 days after the date of contract award or 5 days after the debriefing date offered to an unsuccessful offeror. File one day later and your protest may proceed, but the winner will be performing the contract while it does, which changes the practical value of winning enormously. Section 3553(c) separately bars award while a pre-award protest is pending, subject to an urgent and compelling circumstances override.

There are four costs, and the first two are the ones people forget.

Bonds and fees. Florida requires a bond, cashier's check or money order of 1 percent of the estimated contract amount filed with the formal written protest. That is $15,000 on a $1.5 million contract, posted up front, before anyone has looked at your argument. GAO charges a $500 filing fee for protests filed through its Electronic Protest Docketing System, effective 1 October 2024. Other jurisdictions require deposits or cost bonds of varying size.

Legal fees. A simple, well-documented agency-level protest can be written by the contractor with a few hours of a lawyer's review. Low four figures. A contested administrative hearing or a GAO protest with an agency report, comments and possible supplemental protest grounds is a substantial matter, and firms experienced in this work are not cheap. A full GAO protest through decision commonly runs well into five figures, and Court of Federal Claims litigation more again.

Your own time. Assembling the record, the public records request, the timeline, the affidavits. Days, not hours, at the worst possible moment.

The relationship. Discussed below, and frequently the largest cost of all.

Set against that: GAO must decide a protest within 100 calendar days, and agency-level and state protests are often resolved in two to six weeks. This is fast compared with ordinary litigation, but it is still a quarter of a year in which the contract you wanted is either stalled or being performed by someone else.

1. Get the deadline before you do anything else. Open the solicitation's protest clause. Write the date and time down. Everything else is subordinate to it.
2. File a public records request immediately. Bid tabulation, the winning bid or proposal, evaluation sheets and scoring, the award recommendation memo, and any addenda. Every state has a public records or freedom of information statute, and procurement records are generally disclosable after award. Request in writing, same day. You may need to file a protective notice before the records arrive. That is normal and expected.
3. Build the timeline. Solicitation date, addenda, question responses, bid opening, tabulation, notice of intent to award, and when you learned each fact. When you learned something determines whether your protest is timely.
4. Isolate the ground. One or two specific, provable defects. A protest that lists eleven grievances reads as a losing bidder complaining and dilutes the one argument that might have worked.
5. Draft it in the required form. Most schemes require: your identity and standing as an interested party, the solicitation number, a statement of the grounds with supporting facts, the relief requested, and the required signature. Attach the documents.
6. File exactly as instructed. To the named officer, by the named method, by the deadline. If a bond is required it must be posted within the same window. Florida treats failure to post the bond in time as a waiver of proceedings.
7. Follow through. There is usually an agency response, an opportunity to comment, and sometimes a hearing. Missing an intermediate deadline dismisses the protest.

Get a lawyer involved for anything beyond a simple, documentary agency-level protest, ideally one who does public procurement work in your state, not your general business counsel.

Protest sparingly. Public procurement is a small world and purchasing staff have long memories and talk to each other.

Protest when

• The defect is documentary and provable. The winner's bid is missing a required bond, or the scoring sheet applies a factor that is not in the solicitation. Facts, not judgment.
• The contract is large enough to matter. A five-year, seven-figure services contract justifies a fight in a way a $60,000 one-off does not.
• The same error will recur. If an agency is systematically evaluating outside its published criteria, letting it stand shapes every future award.
• You are already out of the relationship. If you have been effectively excluded from this buyer, the relationship cost is already sunk.
• You raised it before bids were due. A pre-bid challenge to a restrictive specification is a completely different, and far less damaging, act than a post-award protest. Ask the question in the written question period first. An agency will often fix a restrictive spec by addendum without any protest at all.

Do not protest when

• Your real complaint is the score. Discretionary evaluation judgements are the agency's to make.
• You cannot articulate the specific rule that was broken. If your argument reduces to "this feels wrong", you will lose and you will have spent money to do it.
• You saw the problem in the solicitation and bid anyway. You waived it.
• You want the debrief. Ask for the debrief. It is free, it is faster, and it is not adversarial. Many firms protest because nobody told them they could simply request an explanation. See how to request a debrief after losing a bid.
• It is a small contract with a buyer you want for a decade. The arithmetic rarely works.

The honest summary: most losing bidders should request a debrief and never protest. A small minority have a clean, documentary, procedural defect on a contract big enough to justify the cost, and for that minority the remedy exists and works. Knowing which one you are is the whole skill.

If you would like a second opinion on whether what you are looking at is a protest ground or a debrief question, book a call.