Government Contract Bid Protest - Ohio

GOVERNMENT CONTRACT BID PROTEST

State of Ohio

OVERVIEW OF OHIO PROCUREMENT PROTEST LAW

Ohio's procurement protest procedures are governed by ORC Chapter 125, the administrative rules at OAC Chapter 123:5-1, and—critically—the protest clause in the specific solicitation. Judicial forum depends on the defendant and relief sought: the Court of Claims has exclusive jurisdiction over civil claims against the State within ORC § 2743.03(A)(1), while § 2743.03(A)(2) preserves another court's jurisdiction when the sole relief sought against the State is declaratory, injunctive, or other equitable relief. Obtain Ohio procurement counsel before selecting a claim or court.

Key Statutory and Regulatory Framework

FILING REQUIREMENTS AND DEADLINES

Pre-Award Protests (Solicitation Challenges)

Deadline: Use the protest clause in the specific solicitation. DAS's published RFP instructions have used a deadline of no later than five (5) business days before the proposal due date for apparent pre-closing improprieties, but do not transfer that RFP term to an ITB, local procurement, public-improvement bid, or solicitation with different instructions.

Post-Award Protests

Deadline: Use the specific solicitation. DAS's published RFP instructions have required a protest concerning the evaluation committee's award recommendation to be filed as soon as practicable after notice of DAS's decision.

Important: Always review the specific solicitation for its stated protest deadline, as DAS may impose different timeframes in individual RFPs.

Where to File

[INSERT THE CURRENT SUBMISSION CHANNEL, PORTAL, EMAIL, OR ADDRESS FROM THE SOLICITATION'S PROTEST CLAUSE]

Required Content of Protest

☐ Full legal name, address, telephone number, and email of the protester

☐ Name and title of the protester's authorized representative

☐ Solicitation number and title

☐ Name of the contracting agency

☐ Detailed statement of the legal and factual grounds for the protest

☐ Copies of all relevant documents supporting the protest

☐ Clear statement of the relief requested

Standing Requirements

Confirm the solicitation's eligibility language. DAS's published RFP instructions describe a protest by a prospective or actual bidder objecting to an award resulting from that RFP; do not import a federal bid-protest standing test unless controlling Ohio authority supports it.

GROUNDS FOR PROTEST

Check all grounds that apply:

Pre-Award (Solicitation) Grounds

☐ The solicitation contains unduly restrictive specifications that limit competition

☐ The solicitation contains ambiguous or defective requirements

☐ The solicitation terms violate applicable Ohio procurement statutes or rules

☐ The qualification or responsibility requirements are unreasonable

☐ The evaluation criteria are unclear or improperly weighted

☐ The solicitation improperly favors a particular vendor or product (sole-source concern)

☐ Other: [________________________________]

Post-Award Grounds

☐ The evaluation of bids/proposals was not conducted in accordance with the stated criteria

☐ The awardee failed to meet mandatory qualification or responsibility requirements

☐ The awardee's bid/proposal contained material deviations that should have resulted in rejection

☐ The contracting agency failed to follow ORC Chapter 125 or OAC Chapter 123:5-1

☐ The evaluation scoring contained errors or was arbitrary

☐ The agency conducted improper discussions or negotiations with select bidders

☐ The agency engaged in unequal treatment of bidders/offerors

☐ The protester's bid/proposal was improperly rejected as nonresponsive

☐ The agency failed to award to the lowest responsive and responsible bidder (for IFBs)

☐ A conflict of interest or bias affected the evaluation or award decision

☐ The award was based on criteria not stated in the solicitation

☐ The agency failed to disclose material information equally to all bidders

☐ Other: [________________________________]

FORMAL BID PROTEST DOCUMENT

BEFORE THE DEPARTMENT OF ADMINISTRATIVE SERVICES
OFFICE OF PROCUREMENT SERVICES
STATE OF OHIO

BID PROTEST

I. INTRODUCTION

This Protest is submitted by [________________________________] ("Protester") to the Department of Administrative Services ("DAS"), Office of Procurement Services ("OPS"), challenging the [________________________________] (describe: award decision / rejection of Protester's proposal / solicitation terms) under Solicitation No. [________________________________] issued by DAS on behalf of [________________________________] ("Using Agency"). The Protester respectfully requests that DAS review the challenged action and grant the relief described herein.

II. IDENTIFICATION OF PROTESTER

III. TIMELINESS OF PROTEST

☐ Pre-Award Protest: The solicitation's protest clause requires filing by [__/__/____], and this Protest was received through the required channel on [__/__/____].

☐ Post-Award Protest: This Protest is filed as soon as practicable after Protester received notification of the award decision on [__/__/____]. The solicitation requires protests to be filed within [____] days of award notification, and this Protest is filed on [__/__/____], which is the [____] day after notification.

IV. STANDING

Protester has standing to file this Protest because:

☐ Protester submitted a timely bid/proposal in response to the Solicitation on [__/__/____] and is an actual bidder/offeror with a direct economic interest in the award.

☐ Protester is a prospective bidder/offeror who intended to submit a proposal but was prevented from doing so by the alleged solicitation impropriety.

☐ Protester satisfies the protester-eligibility language in Section [____] of the Solicitation because: [________________________________].

V. IDENTIFICATION OF PROCUREMENT

VI. STATEMENT OF FACTS

Set forth a clear, chronological statement of the relevant facts:

1. On [__/__/____], DAS issued Solicitation No. [________________________________] on behalf of [________________________________] for [________________________________] (description of goods or services).

2. The solicitation established the following evaluation criteria and weights: [________________________________].

3. On [__/__/____], Protester submitted its bid/proposal in compliance with all solicitation requirements.

4. A total of [____] responses were submitted by the following offerors (if known): [________________________________].

5. On [__/__/____], DAS notified Protester that the contract had been awarded to [________________________________] ("Awardee") / that Protester's proposal had been rejected because [________________________________].

6. [________________________________]

7. [________________________________]

8. [________________________________]

(Continue as necessary. Attach additional pages if needed.)

VII. SPECIFIC GROUNDS FOR PROTEST

Ground 1: [________________________________]

[________________________________]
[________________________________]
[________________________________]

This action violates ORC § [________________________________] / OAC [________________________________] / Section [________________________________] of the Solicitation because: [________________________________]

Ground 2: [________________________________]

[________________________________]
[________________________________]
[________________________________]

Ground 3: [________________________________]

[________________________________]
[________________________________]
[________________________________]

(Add additional grounds as necessary.)

VIII. PREJUDICE TO PROTESTER

Protester was prejudiced by DAS's action because the errors described above materially affected Protester's ability to compete or the evaluation and award decision. Specifically:

[________________________________]
[________________________________]
[________________________________]

IX. REQUESTED RELIEF

Protester respectfully requests that DAS:

☐ Sustain this Protest and find the challenged action improper;

☐ Cancel the contract award to [________________________________];

☐ Direct the evaluation committee to re-evaluate all proposals in accordance with the stated criteria;

☐ Direct DAS to cancel and re-solicit the procurement;

☐ Award the contract to Protester as the highest-ranked responsive and responsible offeror;

☐ Amend the solicitation to correct the identified deficiencies;

☐ Extend the proposal due date to allow competition;

☐ Take other corrective action as follows: [________________________________];

☐ Grant such other and further relief as DAS deems appropriate.

X. SUPPORTING DOCUMENTATION

The following documents are attached in support of this Protest:

☐ Exhibit A: Copy of the Solicitation (or relevant excerpts)

☐ Exhibit B: Copy of Protester's Bid/Proposal (or relevant excerpts)

☐ Exhibit C: Copy of Award Notification / Rejection Letter

☐ Exhibit D: Evaluation Scoring (if available)

☐ Exhibit E: Correspondence with DAS/Using Agency

☐ Exhibit F: [________________________________]

XI. OPTIONAL CERTIFICATION

Use this certification only if the solicitation requires it or counsel elects to include it; DAS's general RFP protest-content list should not be represented as universally requiring a good-faith certification.

The undersigned hereby certifies that this Protest is submitted in good faith and that the factual statements contained herein are true and correct to the best of the undersigned's knowledge, information, and belief.

PROTESTER:

ATTORNEY FOR PROTESTER (if applicable):

CERTIFICATE OF SERVICE

I hereby certify that on [__/__/____], a true and correct copy of this Protest and all attachments was served upon the following parties by the method indicated:

☐ Hand delivery
☐ U.S. Mail, postage prepaid
☐ Certified Mail, Return Receipt Requested
☐ Electronic mail

[CURRENT SUBMISSION RECIPIENT AND ADDRESS/CHANNEL FROM THE SOLICITATION]

Using Agency:
[________________________________]
[________________________________]
[________________________________]

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

________________________________________
Signature
[________________________________]
Date: [__/__/____]

STAY OF AWARD PROVISIONS

Ohio does not provide an automatic stay of contract performance upon the filing of a bid protest. DAS retains discretion over whether to proceed with the award during the protest period.

Options for Obtaining a Stay

☐ Request a voluntary stay from DAS as part of the protest filing

☐ Have Ohio counsel determine whether any emergency equitable claim belongs in the Court of Claims or another court under ORC § 2743.03(A)(1)-(2), then satisfy that court's jurisdictional and procedural requirements

Requirements for Injunctive Relief

To obtain a TRO or preliminary injunction in Ohio, the protester must demonstrate:

1. A substantial likelihood of success on the merits
2. Irreparable injury absent the injunction
3. No substantial harm to third parties
4. The injunction serves the public interest

PUBLIC IMPROVEMENT CONTRACTS (ORC § 153.12)

Do not use the general DAS RFP protest clause without confirming that it governs the public-improvement solicitation.

What ORC § 153.12 Actually Governs

R.C. § 153.12 does not create a five-day apparent-low-bidder protest. It generally requires award and execution of a covered public-improvement contract within 60 days after bid opening unless the time is extended by mutual consent, sets estimate-related limits, and provides a Court of Claims route for specified post-award disputes between the State and its contractor after contractual administrative and alternative-dispute remedies are exhausted. Any pre-award protest deadline or procedure must come from the solicitation, the public owner's rules, another applicable statute, or a properly selected judicial remedy.

REMEDIES AVAILABLE

Administrative Remedies (DAS Decision)

• Cancellation of the contract award
• Direction to re-evaluate proposals
• Direction to re-solicit the procurement
• Amendment of solicitation terms (pre-award)
• Other corrective action at DAS's discretion

Judicial Remedies

Ohio Court of Claims (ORC § 2743.01 et seq.):

• Ohio waives sovereign immunity for claims against the State through the Court of Claims
• Plead only damages or equitable relief recognized for the specific claim and forum; ORC § 2743.03(A)(2) makes the forum analysis depend in part on whether equitable relief accompanies a civil claim against the State or is the sole relief sought

Other Ohio court:

• Available only after counsel confirms jurisdiction, venue, proper defendants, and the declaratory, injunctive, or extraordinary-writ theory

Ohio Court of Appeals, Tenth Appellate District:

• Appeal of Court of Claims or Common Pleas decisions

APPEAL PROCESS

Step 1: Administrative Protest to DAS Office of Procurement Services

File the written protest within the timeframe and receipt method specified in the solicitation.

Step 2: DAS Review and Decision

DAS OPS reviews the protest and issues a written determination. There is no statutory timeline for the decision, though solicitations may specify one.

Step 3: DAS Decision Is Final Administratively

Ohio does not provide a formal administrative appeal from the DAS protest decision. The DAS Director's decision is the final administrative determination.

Step 4: Judicial Review

Since no administrative appeal exists, the protester must seek judicial relief:

☐ Ohio Court of Claims -- File a complaint for monetary damages and/or equitable relief. The Court of Claims has exclusive original jurisdiction over civil actions against the State (ORC § 2743.03).

Court of Claims Filing Requirements:

☐ Written complaint identifying the parties, facts, and claims

☐ Statement of the legal basis for the claim

☐ Statement of damages or relief sought

☐ Filing fee as required

☐ Service on the Ohio Attorney General

Court of Claims Address:
Ohio Court of Claims
65 South Front Street, Third Floor
Columbus, Ohio 43215

☐ Other Ohio court -- Only after counsel confirms jurisdiction, venue, proper defendants, and the available declaratory, injunctive, or extraordinary-writ theory.

Step 5: Appeal

Decisions of the Court of Claims or Court of Common Pleas may be appealed to the Tenth District Court of Appeals and ultimately to the Supreme Court of Ohio.

FILING CHECKLIST

Pre-Filing

☐ Review the solicitation for specific protest procedures and deadlines (these may vary by solicitation)

☐ Confirm the protest deadline and receipt rule from the solicitation; do not assume a universal pre-award or post-award period

☐ Verify that the protester has standing (submitted or intended to submit a bid/proposal)

☐ Identify and document all grounds for protest with specificity

☐ Gather all supporting documentation (solicitation, proposal, award notification, correspondence)

☐ Determine whether the procurement is a general goods/services procurement (ORC Chapter 125) or a public improvement contract (ORC § 153.12)

☐ Consult with qualified Ohio procurement counsel

Filing

☐ Complete the protest document with all required information

☐ Include a detailed statement of legal and factual grounds

☐ Attach all supporting exhibits and documentation

☐ Sign the protest and include the optional good-faith certification only if required or selected

☐ File with DAS Office of Procurement Services

☐ Serve any recipients required by the solicitation or controlling procedure

☐ Retain proof of filing date and service

Post-Filing

☐ Monitor for acknowledgment from DAS OPS

☐ Respond to any requests for additional information

☐ Evaluate whether injunctive relief is needed to preserve the status quo

☐ Await DAS written determination

☐ If denied, evaluate judicial options (Court of Claims, Court of Common Pleas)

☐ Calendar applicable statutes of limitations for court filings

☐ Preserve all communications and procurement records

PRACTICE NOTES

1. Do Not Assume a Chapter 119 Appeal. Identify any further administrative review from the solicitation, procurement rules, and agency-specific law. If no review route applies, have counsel identify the proper judicial claim and forum rather than styling the case as a generic Chapter 119 appeal.

2. Solicitation-Specific Procedures Control. DAS protest procedures are often set forth in the individual solicitation documents. Always review the RFP or ITB for specific protest requirements, deadlines, and procedures -- they may differ from the general rules.

3. Untimely-Protest Discretion Is Clause-Specific. DAS RFP instructions have reserved discretion to consider an untimely protest, but rely on that language only when the controlling solicitation incorporates it.

4. Forum Depends on the Claim and Relief. The Court of Claims has exclusive jurisdiction over civil claims against the State within ORC § 2743.03(A)(1). Under § 2743.03(A)(2), equitable relief arising from the same circumstances may accompany that civil action, while another court's jurisdiction is preserved when equitable relief is the sole relief sought against the State. Do not assume a disappointed bidder can recover bid costs or lost profits without claim-specific authority.

5. Public Records. Ohio's Public Records Act (ORC § 149.43) provides broad access to government records. File a public records request for procurement documents, evaluation scoring, and communications. Note that trade secrets and certain proprietary information in proposals may be exempted.

6. Ohio Buy American / Domestic Preference. Ohio law (ORC § 125.09) and OAC 123:5-1-06 establish domestic and Ohio product preferences. These preferences may be relevant protest grounds if not properly applied.

7. Construction Contracts. ORC § 153.12 does not create a five-day low-bidder protest. Confirm the public owner's solicitation, procurement rules, and any other governing statute before calculating a deadline or choosing a remedy.

8. Statute of Limitations. If proceeding to court, be mindful of applicable statutes of limitations. Claims in the Court of Claims generally must be filed within two years (ORC § 2743.16).

SOURCES AND REFERENCES

• Ohio Revised Code Chapter 125 (Department of Administrative Services): https://codes.ohio.gov/ohio-revised-code/chapter-125
• Ohio Administrative Code Chapter 123:5-1 (Procurement Procedures): https://codes.ohio.gov/ohio-administrative-code/chapter-123:5-1
• Ohio DAS Office of Procurement Services: https://procure.ohio.gov
• Ohio Court of Claims: https://www.courtofclaims.ohio.gov
• ORC § 153.12 (Public Improvement Contract Awarding and Execution)
• ORC § 2743.03 (Court of Claims Jurisdiction and Equity Powers)
• ORC § 149.43 (Public Records Act)

This template is provided for informational purposes only and does not constitute legal advice. Procurement law is complex and fact-specific. Consult a qualified Ohio attorney before filing a bid protest.