Government Contract Bid Protest

GOVERNMENT CONTRACT BID PROTEST

STATE OF ALASKA

ALASKA BID PROTEST OVERVIEW

Governing Law

Alaska's bid protest process is governed by the Alaska State Procurement Code, AS 36.30.560 through AS 36.30.590, and the Alaska Administrative Code at 2 AAC 12.565 et seq. The protest framework provides a structured administrative remedy for contractors and prospective contractors aggrieved by procurement decisions made by state agencies.

Protest Tiers

Alaska employs a three-tier protest and appeal system:

Filing Deadlines

Pre-Award (Solicitation) Protests:

• Must be filed at least 10 days before the bid opening or proposal due date, or by the date specified in the solicitation for filing protests

Post-Award Protests:

• Must be filed within 10 days after the notice of intent to award the contract is issued by the procurement officer

Cancellation Protests:

• Must be filed within 10 days after the notice of cancellation is issued

Small Procurements (under $50,000):

• Must be filed within 10 days from the date of the solicitation or award, whichever is later (2 AAC 12.695)

Standing Requirements

The following parties have standing to file a bid protest in Alaska:

☐ Actual bidder or offeror who submitted a timely response to the solicitation
☐ Prospective bidder or offeror whose direct economic interest would be affected by the award or failure to award a contract
☐ Subcontractor or supplier with a direct economic interest (limited circumstances)

Automatic Stay Provisions

Under AS 36.30.575, the filing of a protest does not automatically stay the award. However:

• The procurement officer may stay the award if there is a reasonable probability the protest will be sustained, or if a stay is not contrary to the best interests of the state
• If a stay was granted during the Tier 1 protest and the protester files a Tier 2 appeal before the contract is awarded, the stay automatically continues until the Commissioner makes a written determination that award without further delay is necessary to protect substantial state interests

GROUNDS FOR PROTEST

Check all grounds that apply to this protest:

Solicitation Defects

☐ Ambiguous, inconsistent, or unduly restrictive specifications
☐ Failure to include mandatory evaluation criteria in the solicitation
☐ Improper solicitation method (e.g., IFB used where RFP is required)
☐ Inadequate competition period or unreasonable deadlines
☐ Failure to issue required amendments or addenda
☐ Defective scope of work or statement of requirements

Evaluation Errors

☐ Failure to follow stated evaluation criteria or methodology
☐ Application of unstated evaluation factors
☐ Mathematical or clerical scoring errors
☐ Disparate treatment of offerors during evaluation
☐ Unreasonable or irrational best-value tradeoff determination
☐ Failure to document evaluation decisions

Procedural Violations

☐ Failure to follow Alaska Procurement Code procedures
☐ Unauthorized contact between evaluators and offerors
☐ Improper discussions or negotiations with selected offerors only
☐ Failure to conduct required cost or price analysis
☐ Violation of sealed bid procedures
☐ Improper late bid acceptance or rejection

Conflict of Interest and Bias

☐ Organizational conflict of interest affecting the awardee
☐ Personal conflict of interest of evaluation panel members
☐ Bias or prejudgment by procurement officials
☐ Improper ex parte communications

Award Irregularities

☐ Award to non-responsive or non-responsible bidder
☐ Improper sole-source or emergency procurement determination
☐ Failure to verify contractor responsibility
☐ Violation of Alaska bidder preference (AS 36.30.170)
☐ Violation of small/disadvantaged business preferences
☐ Cost or price evaluation errors

FORMAL BID PROTEST DOCUMENT

BEFORE THE PROCUREMENT OFFICER

ALASKA DEPARTMENT OF [________________________________]

PROTEST OF [________________________________]

I. PROTESTER IDENTIFICATION

Company Name: [________________________________]

Business Entity Type: [________________________________]

Alaska Business License No.: [________________________________]

Mailing Address:
[________________________________]
[________________________________]
[________________________________]

Contact Person: [________________________________]

Title: [________________________________]

Telephone: [________________________________]

Email: [________________________________]

Attorney for Protester (if applicable):
[________________________________]
Bar Number: [____]
Firm: [________________________________]
Address: [________________________________]
Telephone: [________________________________]
Email: [________________________________]

II. SOLICITATION AND CONTRACT IDENTIFICATION

1. This protest concerns Solicitation No. [________________________________] (the "Solicitation"), titled "[________________________________]," issued by [________________________________] (the "Agency") on [__/__/____].

2. The Solicitation was issued as a:
   ☐ Request for Proposals (RFP)
   ☐ Invitation for Bids (IFB)
   ☐ Request for Quotations (RFQ)
   ☐ Other: [________________________________]

3. The estimated contract value is $[________________________________].

4. Proposals/bids were due on [__/__/____].

5. The Agency issued a Notice of Intent to Award on [__/__/____], proposing to award the contract to [________________________________] (the "Awardee").

6. The Protester's proposal/bid was submitted on [__/__/____] and was:
   ☐ Evaluated and scored lower than the Awardee
   ☐ Determined non-responsive
   ☐ Determined the offeror was non-responsible
   ☐ Excluded from the competitive range
   ☐ Other: [________________________________]

III. TIMELINESS STATEMENT

This protest is timely filed pursuant to AS 36.30.565 for the following reasons:

☐ Pre-Award Protest: This protest challenges the terms, conditions, or specifications of the Solicitation and is filed at least 10 days before the bid/proposal opening date of [__/__/____], as required by AS 36.30.565(a).

☐ Post-Award Protest: This protest challenges the proposed award and is filed within 10 days of the Notice of Intent to Award dated [__/__/____], as required by AS 36.30.565(b). The 10-day deadline expires on [__/__/____], and this protest is filed on [__/__/____].

☐ Cancellation Protest: This protest challenges the cancellation of the Solicitation and is filed within 10 days of the Notice of Cancellation dated [__/__/____].

IV. STANDING STATEMENT

Protester has standing to file this protest under AS 36.30.560 because:

☐ Protester is an actual bidder/offeror who submitted a timely response to the Solicitation on [__/__/____] and has a direct economic interest affected by the Agency's procurement decision.

☐ Protester is a prospective bidder/offeror whose ability to compete was prejudiced by the terms of the Solicitation, and Protester's direct economic interest is affected.

Protester has been prejudiced by the Agency's actions because, but for the error(s) described herein, Protester would have had a substantial chance of receiving the contract award.

V. STATEMENT OF FACTS

Set forth a clear, concise, chronological narrative of all relevant facts:

1. On [__/__/____], the Agency issued the Solicitation seeking [________________________________].

2. [________________________________]

3. [________________________________]

4. [________________________________]

5. [________________________________]

6. [________________________________]

7. [________________________________]

8. [________________________________]

9. [________________________________]

10. [________________________________]

VI. GROUNDS FOR PROTEST

Protester asserts the following grounds, each constituting an independent basis for sustaining this protest:

GROUND 1: [________________________________]

[________________________________]

The Agency's action violates AS 36.30.[____] and/or 2 AAC 12.[____] because:

[________________________________]

[________________________________]

[________________________________]

This error prejudiced the Protester because:

[________________________________]

GROUND 2: [________________________________]

[________________________________]

The Agency's action violates AS 36.30.[____] and/or 2 AAC 12.[____] because:

[________________________________]

[________________________________]

[________________________________]

This error prejudiced the Protester because:

[________________________________]

GROUND 3: [________________________________]

[________________________________]

The Agency's action violates AS 36.30.[____] and/or 2 AAC 12.[____] because:

[________________________________]

[________________________________]

[________________________________]

This error prejudiced the Protester because:

[________________________________]

(Add additional grounds as necessary)

VII. LEGAL ARGUMENT

A. Applicable Legal Standards

Under the Alaska Procurement Code, the purpose of competitive procurement is to ensure fair and equitable treatment of all persons who deal with the state procurement system, to provide increased public confidence in state procurement procedures, and to ensure the fair and equitable treatment of all offerors. AS 36.30.010.

A protest must be sustained when the protester demonstrates that the agency failed to comply with applicable statutes, regulations, or the terms of the solicitation, and that the protester was prejudiced by such non-compliance.

B. Application to This Protest

[________________________________]

[________________________________]

[________________________________]

[________________________________]

[________________________________]

C. Competitive Prejudice

The Protester was competitively prejudiced by the Agency's errors because:

[________________________________]

[________________________________]

VIII. REQUEST FOR STAY OF AWARD

Protester respectfully requests that the procurement officer stay the award of the contract pending resolution of this protest pursuant to AS 36.30.575 because:

1. There is a reasonable probability that this protest will be sustained based on the grounds set forth above.

2. A stay of the award is not contrary to the best interests of the State of Alaska because:
   [________________________________]

3. The contract has not yet been performed, and no irreparable harm will result from maintaining the status quo during the protest period.

IX. RELIEF REQUESTED

Protester respectfully requests that the procurement officer:

☐ Sustain this protest in its entirety
☐ Declare the proposed award improper and set it aside
☐ Direct the Agency to re-evaluate proposals in accordance with the stated evaluation criteria
☐ Direct the Agency to cancel and re-solicit the procurement
☐ Direct the Agency to award the contract to the Protester as the properly evaluated highest-ranked offeror
☐ Award the Protester its reasonable bid/proposal preparation costs pursuant to AS 36.30.590
☐ Stay further contract performance pending the outcome of this protest
☐ Provide such other and further relief as is just and appropriate under the circumstances

X. EXHIBITS

The following exhibits are attached to and made a part of this protest:

XI. CERTIFICATION

I, [________________________________], hereby certify under penalty of perjury under the laws of the State of Alaska that:

1. The statements of fact contained in this protest are true and correct to the best of my knowledge, information, and belief.

2. This protest is filed in good faith and not for purposes of delay or obstruction.

3. No other action concerning the subject matter of this protest is pending before any court or administrative tribunal.

4. I am authorized to sign this protest on behalf of [________________________________].

XII. SIGNATURE BLOCK

PROTESTER:

By: [________________________________]

Name: [________________________________]

Title: [________________________________]

Date: [__/__/____]

ATTORNEY FOR PROTESTER (if applicable):

By: [________________________________]

Name: [________________________________], Esq.

Alaska Bar No.: [____]

Firm: [________________________________]

Address: [________________________________]

Telephone: [________________________________]

Email: [________________________________]

Date: [__/__/____]

XIII. CERTIFICATE OF SERVICE

I hereby certify that on [__/__/____], a true and correct copy of the foregoing Protest, together with all attached exhibits, was served on the following by the method indicated:

☐ Certified Mail, Return Receipt Requested
☐ Hand Delivery
☐ Email (with confirmation of receipt)
☐ Other: [________________________________]

Served Upon:

1. Procurement Officer:
   [________________________________]
   [________________________________]
   [________________________________]

2. Contracting Agency Head:
   [________________________________]
   [________________________________]
   [________________________________]

3. Awardee (if known):
   [________________________________]
   [________________________________]
   [________________________________]

Signed: [________________________________]

Date: [__/__/____]

FILING CHECKLIST

Before filing this protest, confirm the following:

☐ Protest is in writing and contains all information required by AS 36.30.560
☐ Protest is filed within the applicable deadline under AS 36.30.565
☐ Protest identifies the solicitation or contract number
☐ Protest includes a detailed statement of the legal and factual grounds
☐ Protest specifies the relief requested
☐ Protest is signed by an authorized representative of the protester
☐ Copy of the protest is filed with the procurement officer
☐ Copy of the protest is served on the contracting agency
☐ Copy of the protest is served on the awardee (if applicable and known)
☐ All supporting exhibits are attached and properly labeled
☐ Certificate of service is completed
☐ Protester has retained a date-stamped copy for its records
☐ Attorney review has been completed (recommended)
☐ Any applicable protest bond or filing fee has been submitted (verify with agency)

APPEAL PROCEDURES

Appeal to the Commissioner (Tier 2)

If the procurement officer denies the protest, the protester may appeal to the Commissioner of the Department of Administration (or the Commissioner of Transportation and Public Facilities for DOT&PF procurements) under AS 36.30.585.

Key Requirements:

• The appeal must be filed within 10 days after receipt of the procurement officer's decision
• The appeal must be in writing and must state the grounds for appeal
• If a stay was in effect during the Tier 1 protest, it automatically continues during the appeal unless the Commissioner makes a written determination that award without delay is necessary

Commissioner's Decision:

• The Commissioner shall issue a written decision within 15 days after the appeal is filed
• The decision must contain findings of fact and conclusions

Judicial Review (Tier 3)

A party may seek judicial review of the Commissioner's decision in the Alaska Superior Court under AS 36.30.685.

Key Requirements:

• File a petition for judicial review in the Superior Court
• Exhaust administrative remedies before seeking judicial review
• The court reviews the administrative record under the substantial evidence standard

REMEDIES AVAILABLE UNDER ALASKA LAW

Under AS 36.30.590, the following remedies may be available if a protest is sustained:

Note: Alaska law does not generally provide for recovery of attorney fees in bid protests at the administrative level, though fees may be recoverable in judicial proceedings.

ALASKA-SPECIFIC PRACTICE NOTES

1. Alaska Bidder Preference: AS 36.30.170 provides preferences for Alaska bidders. A protest may be filed if the preference is improperly applied or denied.

2. Construction Procurements: Construction contract bid protests may involve additional requirements under AS 36.30.100-130. Verify applicable provisions for construction-specific protests.

3. IT Procurements: Information technology procurements handled by the Department of Administration may have supplementary protest procedures.

4. Small Procurement Protests: Under 2 AAC 12.695, protests of small procurements (contracts under $50,000) follow a simplified procedure but must still be filed within 10 days.

5. Informal Resolution: Before filing a formal protest, consider contacting the procurement officer to discuss concerns. Many disputes can be resolved informally without the need for a formal protest.

6. Document Preservation: Immediately upon identifying potential grounds for protest, begin preserving all relevant documents, communications, and records related to the procurement.

SOURCES AND REFERENCES

• Alaska State Procurement Code: AS 36.30.560-590
• Alaska Administrative Code: 2 AAC 12.565, 2 AAC 12.695
• Alaska Department of Administration, Division of General Services
• Alaska DOT&PF Procurement Protest Rules: https://dot.alaska.gov/procurement/supply/protest.shtml
• Alaska Administrative Manual, Procurement Chapter VIII

This template is provided for informational purposes only and does not constitute legal advice. Procurement law is complex and subject to change. You must have this document reviewed and customized by a qualified attorney licensed in Alaska before filing. Failure to comply with applicable deadlines, procedures, and requirements may result in dismissal of your protest.