Government Contract Bid Protest

GOVERNMENT CONTRACT BID PROTEST

State of Idaho

OVERVIEW OF IDAHO PROCUREMENT PROTEST LAW

Idaho state procurement is governed by Idaho Code Title 67, Chapter 57, which establishes the Division of Purchasing within the Department of Administration as the central purchasing authority. Bid protests (referred to as "appeals" and "challenges" under Idaho law) are governed primarily by Idaho Code § 67-5733. The Administrator of the Division of Purchasing makes initial award decisions, and challenges are directed to the Director of the Department of Administration.

Key Statutory Provisions:

• Idaho Code § 67-5733 -- Division of Purchasing, Appeals (primary protest statute)
• Idaho Code § 67-5711E -- Specifications challenges (pre-bid)
• Idaho Code § 67-5718 -- Competitive bidding requirements
• Idaho Code § 67-5729 -- Application of the Administrative Procedure Act
• Idaho Code Title 67, Chapter 52 -- Idaho Administrative Procedure Act (IDAPA)

Filing Deadline: Five (5) working days following receipt of notice that the vendor is not the lowest responsible bidder, or five (5) working days following notice of rejection of a bid as nonresponsive.

Filing Authority: Director of the Department of Administration

Standing: Any bidder whose bid was found nonresponsive, or any vendor whose bid is considered but who is not the lowest responsible bidder.

Automatic Stay: Idaho law does not provide a blanket automatic stay. However, if a challenge to specifications is filed before bid opening, the Administrator shall reset the bid opening no later than fifteen (15) days after final determination of challenges or amendment of the specifications.

GROUNDS FOR PROTEST CHECKLIST

Check all grounds applicable to this protest:

☐ Solicitation specifications were defective, ambiguous, or unduly restrictive
☐ Evaluation of bids deviated from stated evaluation criteria
☐ Agency failed to follow competitive bidding procedures under Idaho Code § 67-5718
☐ Scoring errors, mathematical mistakes, or miscalculations in bid tabulation
☐ Bias, conflict of interest, or improper influence in the procurement process
☐ Unauthorized contact between agency personnel and one or more bidders
☐ Award to a non-responsive bidder
☐ Award to a non-responsible bidder
☐ Improper sole-source or emergency procurement justification
☐ Protester's bid improperly rejected as nonresponsive
☐ Failure to apply mandatory preferences (e.g., Idaho resident preference)
☐ Cost or price evaluation errors
☐ Failure to comply with terms and conditions of the Invitation to Bid
☐ Improper waiver of material bid requirements for the awardee
☐ Failure to conduct proper request for qualifications process
☐ Violation of Idaho Code Chapter 57 purchasing procedures
☐ Other: [________________________________]

FORMAL BID PROTEST DOCUMENT

BEFORE THE IDAHO DEPARTMENT OF ADMINISTRATION

CHALLENGE / APPEAL OF PROCUREMENT DECISION

Protester (Appellant): [________________________________]

Solicitation/Bid No.: [________________________________]

Solicitation Title: [________________________________]

Contracting Agency: [________________________________]

Date of Award/Rejection Notice: [__/__/____]

Date of This Challenge: [__/__/____]

Challenge/Appeal No.: [________________________________] (if assigned)

I. PRELIMINARY STATEMENT

This Challenge and Appeal ("Challenge") is submitted by [________________________________] ("Protester"), a [________________________________] organized under the laws of the State of [____], with its principal place of business at [________________________________], to the Director of the Idaho Department of Administration ("Director"), pursuant to Idaho Code § 67-5733.

Protester challenges the [☐ award decision / ☐ bid rejection / ☐ specification requirements] made by the Administrator of the Division of Purchasing ("Administrator") in connection with Solicitation No. [________________________________] ("Solicitation"), which sought [________________________________] (brief description of goods/services procured).

II. TYPE OF CHALLENGE

(Select the applicable type)

☐ Appeal of Nonresponsive Determination (Idaho Code § 67-5733(1)(a)): Protester's bid was found nonresponsive and Protester appeals to the Director.

☐ Appeal of Lowest Responsible Bidder Determination (Idaho Code § 67-5733(1)(c)): Protester's bid was considered but Protester was not selected as the lowest responsible bidder. Protester applies to the Director for appointment of a determinations officer.

☐ Challenge to Specifications (Idaho Code § 67-5711E): Protester challenges the specifications of the solicitation prior to bid opening.

III. TIMELINESS OF THIS CHALLENGE

1. On [__/__/____], the Administrator [awarded the contract to / rejected Protester's bid as nonresponsive / issued the solicitation with the challenged specifications].

2. Protester received notice of the [award / rejection / specification issue] on [__/__/____].

3. This Challenge is filed on [__/__/____], which is within five (5) working days following receipt of notice, as required by Idaho Code § 67-5733.

4. Therefore, this Challenge is timely.

IV. STANDING

1. Protester submitted a timely bid in response to the Solicitation on [__/__/____].

2. Protester is [☐ a bidder whose bid was found nonresponsive / ☐ a bidder whose bid was considered but who was not selected as the lowest responsible bidder / ☐ a prospective bidder challenging specifications].

3. Protester has a direct economic interest in the outcome of this procurement.

4. Protester therefore has standing to bring this Challenge under Idaho Code § 67-5733.

V. STATEMENT OF FACTS

Set forth a detailed chronological narrative of the relevant facts:

1. On [__/__/____], the Agency issued Solicitation No. [________________________________], seeking [________________________________].

2. The Solicitation established the following requirements and evaluation criteria:

a. [________________________________]

b. [________________________________]

c. [________________________________]

d. [________________________________]

3. On [__/__/____], Protester submitted its bid in response to the Solicitation in the amount of $[________________________________].

4. [________________________________] (describe any pre-award events, addenda, or clarifications).

5. On [__/__/____], the Administrator [awarded the contract to [________________________________] / rejected Protester's bid as nonresponsive because [________________________________]].

6. Protester's bid price was $[________________________________]. The winning bid price was $[________________________________].

7. [________________________________] (describe any post-award events or information obtained).

8. [________________________________] (additional relevant facts).

VI. SPECIFIC REASONS WHY THE ADMINISTRATOR'S DECISION IS ERRONEOUS

Pursuant to Idaho Code § 67-5733, Protester sets forth in specific terms the reasons why the Administrator's decision is erroneous:

Reason 1: [________________________________]

[________________________________]

Supporting documentation: [________________________________]

Applicable legal authority: [________________________________]

Reason 2: [________________________________]

[________________________________]

Supporting documentation: [________________________________]

Applicable legal authority: [________________________________]

Reason 3: [________________________________]

[________________________________]

Supporting documentation: [________________________________]

Applicable legal authority: [________________________________]

Reason 4: [________________________________]

(Add additional reasons as necessary)

[________________________________]

VII. LEGAL ARGUMENT

A. The Administrator's Decision Was Erroneous Under Idaho Code § 67-5733

The Administrator's decision to [award the contract to [________________________________] / reject Protester's bid] was erroneous because [________________________________]. Idaho Code § 67-5733 provides that a bidder may challenge the Administrator's decision when it is believed to be erroneous, and the challenge shall set forth in specific terms the reasons for the belief of error.

B. The Agency Failed to Follow Competitive Bidding Requirements

Idaho Code § 67-5718 requires that all purchases of property be made on competitive bids. The Agency's actions violated these requirements by [________________________________].

C. The Administrator Improperly Applied Bid Responsiveness Standards

(If applicable) The Administrator rejected Protester's bid as nonresponsive, finding that [________________________________]. However, this determination was erroneous because [________________________________]. The alleged deficiency was [immaterial / waivable / already addressed in the bid].

D. Protester Was Prejudiced by the Agency's Actions

But for the Administrator's errors, Protester would have been [the lowest responsible bidder / in line for award]. The Administrator's actions directly and materially prejudiced Protester's competitive position.

E. Additional Legal Arguments

[________________________________]

VIII. REQUEST FOR STAY / BID OPENING RESET

(Select as applicable)

☐ For Specification Challenges: Pursuant to Idaho Code § 67-5711E, Protester requests that the Administrator reset the bid opening until this Challenge is resolved. The Administrator shall reset the bid opening no later than fifteen (15) days after final determination of this Challenge or amendment of the specifications.

☐ For Award Challenges: Protester requests that the Director stay further performance and execution of the contract pending resolution of this Challenge for the following reasons:

1. There is a substantial likelihood that Protester will prevail on the merits;
2. Irreparable harm will result if the stay is not granted, in that [________________________________];
3. A stay will not cause undue harm to the Agency because [________________________________];
4. The public interest favors a stay because [________________________________].

IX. REQUESTED RELIEF

Protester respectfully requests that the Director:

1. ☐ Sustain this Challenge and find that the Administrator's decision was erroneous;

2. ☐ Affirm, modify, or reverse the Administrator's decision pursuant to Idaho Code § 67-5733;

3. ☐ Direct the Administrator to cancel the award to [________________________________];

4. ☐ Direct the Administrator to re-evaluate bids in accordance with the Solicitation's requirements;

5. ☐ Award the contract to Protester as the lowest responsive and responsible bidder;

6. ☐ Direct the Agency to re-solicit the procurement;

7. ☐ Reset the bid opening date (for specification challenges);

8. ☐ Award Protester its reasonable costs, including bid preparation costs;

9. ☐ Grant such other and further relief as the Director deems just and appropriate.

X. SUPPORTING DOCUMENTATION

Pursuant to Idaho Code § 67-5733, the following documentation is provided in support of this Challenge:

☐ Exhibit A: Copy of the Solicitation / Invitation to Bid (or relevant excerpts)

☐ Exhibit B: Protester's Bid (or relevant excerpts)

☐ Exhibit C: Notice of Award or Notice of Rejection

☐ Exhibit D: Bid Tabulation Sheet

☐ Exhibit E: Correspondence with the Administrator or Agency

☐ Exhibit F: [________________________________]

☐ Exhibit G: [________________________________]

☐ Exhibit H: [________________________________]

XI. CERTIFICATION

I, the undersigned, hereby certify that:

1. The statements and representations made in this Challenge are true and correct to the best of my knowledge, information, and belief;

2. This Challenge is filed in good faith and not for any improper purpose;

3. The factual contentions herein have evidentiary support as provided in the attached documentation;

4. I am authorized to submit this Challenge on behalf of Protester.

XII. SIGNATURE AND IDENTIFICATION

PROTESTER:

Signature: _________________________________

Printed Name: [________________________________]

Title: [________________________________]

Organization: [________________________________]

Address: [________________________________]

City, State, ZIP: [________________________________]

Telephone: [________________________________]

Email: [________________________________]

Date: [__/__/____]

COUNSEL FOR PROTESTER (if applicable):

Signature: _________________________________

Name: [________________________________], Esq.

Idaho State Bar No.: [________________________________]

Firm: [________________________________]

Address: [________________________________]

City, State, ZIP: [________________________________]

Telephone: [________________________________]

Email: [________________________________]

Date: [__/__/____]

XIII. CERTIFICATE OF SERVICE

I hereby certify that on [__/__/____], a true and correct copy of the foregoing Challenge / Appeal, together with all exhibits, was served upon the following by [☐ certified mail, return receipt requested / ☐ hand delivery / ☐ electronic mail / ☐ overnight courier]:

1. Director, Department of Administration
   State of Idaho
   650 W. State Street, Room 100
   P.O. Box 83720
   Boise, Idaho 83720-0003

2. Administrator, Division of Purchasing
   State of Idaho
   650 W. State Street, Room B-15
   P.O. Box 83720
   Boise, Idaho 83720-0075

3. [________________________________] (Contracting Agency Contact)
   [________________________________]
   [________________________________]

4. [________________________________] (Awardee, if known)
   [________________________________]
   [________________________________]

Signature: _________________________________

Name: [________________________________]

Date: [__/__/____]

FILING CHECKLIST

☐ Written Challenge/Appeal prepared and signed
☐ Challenge sets forth in specific terms the reasons why the Administrator's decision is erroneous
☐ Available documentation supporting the reasons is attached
☐ Challenge filed within five (5) working days following receipt of notice of the challenged decision
☐ Challenge delivered to the Director, Department of Administration
☐ Copy served on the Administrator, Division of Purchasing
☐ Copy served on contracting agency
☐ Copy served on awardee (if known)
☐ Certificate of Service completed
☐ Retained copy of complete filing with proof of delivery
☐ Confirmed whether a Request for Qualifications (RFQ) was issued (affects hearing process)
☐ Request for stay or bid opening reset filed (if applicable)
☐ Calendar the Director's five (5) working day response deadline

DIRECTOR'S REVIEW PROCESS

Under Idaho Code § 67-5733, the Director's review depends on the type of solicitation:

Where No Request for Qualifications Was Issued:

1. The Director shall affirm the decision of the Administrator (which is then the final agency decision), OR
2. The Director shall request a hearing officer to review the record and recommend to the Director to affirm, modify, or reverse the Administrator's decision.
3. The Director must act within five (5) business days of receipt of the challenge.

Where a Request for Qualifications Was Issued:

1. The Director shall request a hearing officer to review the record.
2. The hearing officer shall recommend to the Director to affirm, modify, or reverse the Administrator's decision.
3. The Director must act within five (5) business days of receipt of the challenge.

REMEDIES AVAILABLE

Under Idaho procurement law, the following remedies may be available upon a sustained protest:

• Reversal of the Administrator's award decision
• Modification of the award
• Cancellation of the solicitation
• Re-solicitation of the procurement
• Resetting of the bid opening date (for specification challenges -- within 15 days)
• Award to the protester as the lowest responsible bidder
• Such other corrective action as deemed appropriate by the Director

JUDICIAL REVIEW

Important Distinction: Idaho Code § 67-5733 creates different judicial review rights depending on the type of challenge:

Nonresponsive Bid Appeals (§ 67-5733(1)(a)):

An appeal conducted under nonresponsive bid provisions is NOT a contested case and is NOT subject to judicial review under Idaho Administrative Procedure Act, Chapter 52, Title 67.

Lowest Responsible Bidder Appeals (§ 67-5733(1)(c)):

Appeals conducted as contested cases pursuant to § 67-5733(1)(c) ARE subject to judicial review under IDAPA, Chapter 52, Title 67.

Judicial Review Procedure:

• Petition for judicial review must be filed in district court within twenty-eight (28) days after the agency action pursuant to Idaho Code § 67-5273.
• The court reviews the agency record to determine whether the decision was:
• Made upon unlawful procedure
• Not supported by substantial evidence on the record as a whole
• Arbitrary, capricious, or an abuse of discretion
• In violation of statutory or constitutional provisions

IMPORTANT NOTES AND PRACTICE TIPS

1. Strict Five-Day Deadline: The five (5) working day deadline begins the day following receipt of notice. Count carefully and exclude weekends and state holidays.

2. Specificity Is Critical: Idaho Code § 67-5733 requires that the challenge "set forth in specific terms the reasons why the [decision] is thought to be erroneous." Vague or general complaints will be rejected.

3. Documentation Required: Provide "available documentation supporting such reasons." Gather all supporting evidence before filing.

4. Know Your Appeal Type: The process differs depending on whether you are appealing a nonresponsive determination or a lowest responsible bidder determination. Choose the correct pathway.

5. Specification Challenges Are Pre-Bid: Challenges to specifications under § 67-5711E must be filed before bid opening. If the Administrator denies the challenge, the bid opening date is not reset.

6. No Judicial Review for Nonresponsive Appeals: Be aware that if your bid was rejected as nonresponsive, the Director's decision is final and not subject to judicial review under IDAPA.

7. Determinations Officer: For lowest responsible bidder appeals, the Director may appoint a determinations officer to review the record and make recommendations.

This template is provided for informational purposes only and does not constitute legal advice. Consult a qualified Idaho attorney before filing a bid protest.

SOURCES AND REFERENCES

• Idaho Code § 67-5733 -- Division of Purchasing, Appeals
• Idaho Code § 67-5711E -- Specifications Challenge
• Idaho Code § 67-5718 -- Competitive Bidding Requirements
• Idaho Code § 67-5729 -- Application of Administrative Procedure Act
• Idaho Code Title 67, Chapter 52 -- Idaho Administrative Procedure Act
• Idaho Division of Purchasing: https://purchasing.idaho.gov