Government Contract Bid Protest

GOVERNMENT CONTRACT BID PROTEST

STATE OF ARKANSAS

ARKANSAS BID PROTEST OVERVIEW

Governing Law

Arkansas bid protests are governed by the Arkansas Procurement Law, Ark. Code Ann. § 19-11-201 et seq., with the specific protest mechanism established under Ark. Code Ann. § 19-11-244. The Office of State Procurement (OSP) within the Department of Transformation and Shared Services (TSS) (now the Department of Shared Administrative Services, or SAS) administers the state procurement process and oversees protest determinations for state agency procurements.

Protest Tiers

Arkansas employs a two-tier administrative protest system, followed by potential judicial review:

Filing Deadlines

Solicitation Protests:

• Must be submitted in writing at least 72 hours before the deadline for submitting a response to the solicitation

Award Protests:

• Must be filed within 14 calendar days after the aggrieved person knows or should have known of the facts giving rise to the grievance

Standing Requirements

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

☐ Actual bidder or offeror who submitted a timely response to the solicitation and is aggrieved in connection with the award
☐ Prospective bidder or offeror who is aggrieved in connection with the solicitation of a contract
☐ Contractor aggrieved in connection with the solicitation or award of a contract

Stay Provisions

Under Arkansas procurement law, the State Procurement Director or head of the procurement agency has discretion to stay the procurement or contract award pending resolution of the protest. There is no automatic mandatory stay, but the Director may:

• Delay opening of bids or proposals pending resolution of a solicitation protest
• Stay the contract award pending resolution of an award protest
• Determine that proceeding with the procurement is necessary to protect the state's interests despite the pending protest

GROUNDS FOR PROTEST

Check all grounds that apply to this protest:

Solicitation Defects

☐ Ambiguous, defective, or unduly restrictive specifications
☐ Failure to include mandatory evaluation criteria in the solicitation
☐ Improper solicitation method (IFB vs. RFP vs. competitive sealed proposals)
☐ Insufficient competition period or unreasonable deadlines
☐ Failure to issue necessary amendments or addenda
☐ Defective scope of work or statement of requirements
☐ Violation of Ark. Code Ann. § 19-11-229 (sole source procurement requirements)

Evaluation Errors

☐ Failure to follow stated evaluation criteria or methodology
☐ Application of unstated or undisclosed evaluation factors
☐ Mathematical or clerical scoring errors
☐ Disparate treatment or unequal discussions with offerors
☐ Unreasonable or irrational best-value determination
☐ Failure to properly document the evaluation process
☐ Failure to evaluate based on criteria stated in the RFP per § 19-11-232

Procedural Violations

☐ Failure to follow Arkansas Procurement Law procedures
☐ Unauthorized sole-source or emergency procurement determination
☐ Violation of sealed bid procedures under § 19-11-230
☐ Improper late bid acceptance or rejection
☐ Failure to conduct required cost or price analysis
☐ Failure to publicly open bids as required
☐ Violation of multi-step sealed bidding procedures under § 19-11-231

Conflict of Interest and Bias

☐ Organizational conflict of interest affecting the awardee
☐ Personal conflict of interest of evaluators or procurement officials
☐ Bias or prejudgment in the evaluation process
☐ Improper ex parte communications
☐ Unauthorized contact between evaluators and offerors

Award Irregularities

☐ Award to non-responsive or non-responsible bidder
☐ Failure to award to the lowest responsible bidder (IFB procurements)
☐ Failure to verify contractor responsibility
☐ Cost or price evaluation errors
☐ Violation of preference programs (Arkansas-based businesses, minorities, veterans)
☐ Improper waiver of material bid requirements
☐ Splitting of purchases to avoid competitive procurement thresholds

FORMAL BID PROTEST DOCUMENT

BEFORE THE STATE PROCUREMENT DIRECTOR

ARKANSAS DEPARTMENT OF SHARED ADMINISTRATIVE SERVICES

OFFICE OF STATE PROCUREMENT

PROTEST OF [________________________________]

I. PROTESTER IDENTIFICATION

Company Name: [________________________________]

Business Entity Type: ☐ Corporation ☐ LLC ☐ Partnership ☐ Sole Proprietorship ☐ Other: [________________________________]

State of Formation/Incorporation: [________________________________]

Arkansas Secretary of State Filing No.: [________________________________]

Federal EIN: [________________________________]

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

Contact Person: [________________________________]

Title: [________________________________]

Telephone: [________________________________]

Email: [________________________________]

Attorney for Protester (if applicable):
[________________________________]
Arkansas Bar ID No.: [____]
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:
   ☐ Invitation for Bids (IFB) under Ark. Code Ann. § 19-11-230
   ☐ Request for Proposals (RFP) under Ark. Code Ann. § 19-11-232
   ☐ Request for Qualifications (RFQ)
   ☐ Multi-Step Sealed Bidding under Ark. Code Ann. § 19-11-231
   ☐ Other: [________________________________]

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

4. Bids/proposals were due on [__/__/____].

5. The Agency announced the proposed award on [__/__/____], proposing to award the contract to [________________________________] (the "Awardee").

6. Protester submitted its bid/proposal on [__/__/____].

7. Protester became aware of the facts giving rise to this protest on [__/__/____].

III. TIMELINESS STATEMENT

This protest is timely filed pursuant to Ark. Code Ann. § 19-11-244 for the following reasons:

☐ Solicitation Protest: This protest challenges the terms or conditions of the Solicitation and is submitted at least 72 hours before the deadline for submitting a response to the Solicitation. The response deadline is [__/__/____] at [____] (time), and this protest is filed on [__/__/____], which is more than 72 hours before the response deadline.

☐ Award Protest: This protest challenges the proposed award of the contract. The Protester first knew or should have known of the facts giving rise to this protest on [__/__/____]. This protest is filed within 14 calendar days of that date. The 14-day deadline expires on [__/__/____], and this protest is filed on [__/__/____].

IV. STANDING STATEMENT

Protester has standing to file this protest under Ark. Code Ann. § 19-11-244 because:

☐ Protester is an actual bidder or offeror who submitted a timely response to the Solicitation on [__/__/____] and is aggrieved in connection with the award of the contract.

☐ Protester is a prospective bidder or offeror who is aggrieved in connection with the solicitation of the contract.

☐ Protester is a contractor who is aggrieved in connection with the solicitation or award of the contract.

Protester's direct economic interest is affected because:

[________________________________]

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 Ark. Code Ann. § [________________________________] and/or applicable procurement rules because:

[________________________________]

[________________________________]

[________________________________]

This error prejudiced the Protester because:

[________________________________]

GROUND 2: [________________________________]

[________________________________]

The Agency's action violates Ark. Code Ann. § [________________________________] and/or applicable procurement rules because:

[________________________________]

[________________________________]

[________________________________]

This error prejudiced the Protester because:

[________________________________]

GROUND 3: [________________________________]

[________________________________]

The Agency's action violates Ark. Code Ann. § [________________________________] and/or applicable procurement rules because:

[________________________________]

[________________________________]

[________________________________]

This error prejudiced the Protester because:

[________________________________]

(Add additional grounds as necessary)

VII. LEGAL ARGUMENT

A. Applicable Legal Standards

Under Ark. Code Ann. § 19-11-244, any actual or prospective bidder, offeror, or contractor who is aggrieved in connection with the solicitation or award of a contract may protest. The State Procurement Director or head of the procurement agency has authority to settle, resolve, or issue an administrative protest determination.

The Arkansas Procurement Law establishes that competitive sealed bidding shall be the preferred method for procuring supplies, services, and construction (§ 19-11-230). When competitive sealed proposals are used, the RFP must state the relative importance of evaluation criteria (§ 19-11-232), and the award must be made to the responsible offeror whose proposal is determined to be most advantageous to the state.

B. Application to This Protest

[________________________________]

[________________________________]

[________________________________]

[________________________________]

C. Competitive Prejudice

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

[________________________________]

[________________________________]

VIII. REQUEST FOR STAY OF PROCUREMENT

Protester respectfully requests that the State Procurement Director exercise discretion to stay the contract award and prohibit the Agency from executing a contract pending resolution of this protest because:

1. The grounds for this protest are meritorious and supported by substantial evidence.

2. Proceeding with the contract award while this protest is pending will cause irreparable harm to the Protester and to the integrity of the procurement process.

3. The public interest is best served by resolving this protest before committing state resources to a potentially improper contract.

4. [________________________________]

IX. RELIEF REQUESTED

Protester respectfully requests that the State Procurement Director:

☐ Sustain this protest in its entirety
☐ Set aside the proposed award as contrary to law
☐ Direct the Agency to re-evaluate bids or proposals in accordance with the stated 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 lowest responsible bidder or most advantageous offeror
☐ Award the Protester its reasonable bid/proposal preparation costs as authorized under § 19-11-244
☐ Stay the contract award pending resolution of this protest
☐ Provide such other relief as the Director deems just and appropriate

X. EXHIBITS

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

XI. CERTIFICATION

I, [________________________________], hereby certify 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.

Arkansas Bar ID 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. State Procurement Director:
   Office of State Procurement
   Department of Shared Administrative Services
   [________________________________]
   [________________________________]

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

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

Signed: [________________________________]

Date: [__/__/____]

FILING CHECKLIST

Before filing this protest, confirm the following:

☐ Protest is in writing
☐ Protest is submitted to the State Procurement Director or head of the procurement agency
☐ Solicitation protest is filed at least 72 hours before the response deadline
☐ Award protest is filed within 14 calendar days after the protester knew or should have known of the facts giving rise to the protest
☐ Protest identifies the solicitation or contract number
☐ Protest includes a detailed statement of the factual and legal grounds
☐ Protest specifies the relief requested
☐ Protest is signed by an authorized representative
☐ All supporting exhibits are attached and properly labeled
☐ Copies served on the contracting agency and awardee (if applicable)
☐ Certificate of service is completed
☐ Protester has retained a date-stamped copy for its records
☐ Attorney review has been completed (strongly recommended)
☐ Verified whether protest should be directed to OSP or individual agency procurement head

APPEAL AND REVIEW PROCEDURES

Administrative Protest Determination

Under Ark. Code Ann. § 19-11-244, the State Procurement Director or head of the procurement agency shall promptly issue a written protest determination that either denies or sustains the protest. The determination is final and conclusive unless appealed.

Settlement Opportunity: Before issuing a determination, the Director or agency head may attempt to settle and resolve the protest by mutual agreement. Protester should be prepared to engage in settlement discussions if offered.

Judicial Review

If the administrative protest determination is adverse, the protester may seek judicial review:

• File a petition for judicial review in the Circuit Court of Pulaski County (for state-level procurements)
• The court reviews the administrative record under the Arkansas Administrative Procedure Act
• The standard of review is whether the determination was supported by substantial evidence and was not arbitrary, capricious, or contrary to law
• The general deadline for filing a civil appeal is 30 days from entry of the final order under the Arkansas Rules of Appellate Procedure

Recovery of Costs

Under Ark. Code Ann. § 19-11-244, when a protest is sustained and the successfully protesting bidder or offeror was denied the contract award, the protesting bidder or offeror may be entitled to reasonable costs incurred in connection with the solicitation, including bid preparation costs, through the commission.

REMEDIES AVAILABLE UNDER ARKANSAS LAW

ARKANSAS-SPECIFIC PRACTICE NOTES

1. Department of Shared Administrative Services (SAS): Formerly the Department of Transformation and Shared Services (TSS), this department houses the Office of State Procurement (OSP). The OSP website publishes protest determinations, which can be reviewed for precedent and guidance. See: https://sas.arkansas.gov/procurement/laws-and-guidelines/protests/

2. 72-Hour Solicitation Protest Rule: The 72-hour deadline for solicitation protests is strictly enforced. Calculate the deadline carefully, counting backward from the response due date and time.

3. "Knew or Should Have Known" Standard: For award protests, the 14-day clock starts running when the protester knew or reasonably should have known of the facts giving rise to the protest, not necessarily when the award was formally announced. This constructive knowledge standard can shorten the filing window.

4. Final and Conclusive: The administrative protest determination is described as "final and conclusive" under the statute. This underscores the importance of presenting the strongest possible case at the administrative level.

5. Cooperative Purchasing: Procurements conducted through cooperative purchasing agreements or consortiums may have separate protest procedures. Verify the applicable rules.

6. Construction Procurements: State construction projects may involve additional requirements under the Arkansas building and construction procurement statutes. Verify applicable provisions.

7. Higher Education: University of Arkansas System procurements and other higher education procurements may follow separate institutional procurement rules. Confirm the governing procedures before filing.

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

9. Informal Resolution: Before filing a formal protest, consider contacting the procurement officer to discuss concerns. Many disputes can be resolved informally, saving time and resources for all parties.

SOURCES AND REFERENCES

• Ark. Code Ann. § 19-11-244 (Resolution of Protested Solicitations and Awards)
• Ark. Code Ann. § 19-11-201 et seq. (Arkansas Procurement Law)
• Arkansas Department of Shared Administrative Services, Office of State Procurement
• Protest Determinations: https://sas.arkansas.gov/procurement/laws-and-guidelines/protests/
• Arkansas Procurement Laws and Rules (published by SAS/OSP)

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