Government Contract Bid Protest

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 the specific policies of the Department of Administrative Services ("DAS") Office of Procurement Services ("OPS"). Ohio does not have a comprehensive statutory bid protest framework like some states; instead, protest procedures are established primarily through administrative rules, DAS policies, and individual solicitation terms. Critically, Ohio's statutes, rules, and regulations do not provide formal administrative appeal rights to disappointed bidders. When a protest is denied by DAS, the primary judicial remedy is filing a claim in the Ohio Court of Claims, which has jurisdiction over claims against the State.

Key Statutory and Regulatory Framework

FILING REQUIREMENTS AND DEADLINES

Pre-Award Protests (Solicitation Challenges)

Deadline: A protest based on alleged improprieties in the issuance of the solicitation (RFP/IFB) or any event preceding the closing date for receipt of proposals that is apparent or should be apparent before the closing date must be filed no later than five (5) business days prior to the proposal/bid due date.

Post-Award Protests

Deadline: A protest related to the evaluation committee's recommendation for contract award must be filed as soon as practicable after the offeror is notified of DAS's decision regarding the offeror's proposal. Many solicitations specify a seven (7) calendar day or five (5) business day deadline from notification of the award decision.

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

Where to File

Department of Administrative Services
Office of Procurement Services
4200 Surface Road
Columbus, Ohio 43228

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

☐ Certification that the protest is filed in good faith

Standing Requirements

The protester must be a prospective or actual bidder/offeror objecting to the award of a contract resulting from the solicitation. The protester must demonstrate:

☐ The protester submitted or intended to submit a bid/proposal in response to the solicitation

☐ The protester has a direct economic interest affected by the award decision

☐ The protester would have a substantial chance of receiving the award but for the alleged error

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: This Protest is filed more than five (5) business days before the proposal/bid due date of [__/__/____], as required for protests challenging solicitation terms.

☐ 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 would have had a substantial chance of receiving the contract award but for the alleged error.

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, but for the errors described above, Protester would have had a substantial chance of receiving the contract award. 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. 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

Department of Administrative Services
Office of Procurement Services
4200 Surface Road
Columbus, Ohio 43228

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

☐ Seek injunctive relief from the Franklin County Court of Common Pleas through a TRO and/or Preliminary Injunction

☐ Seek injunctive relief from the Ohio Court of Claims in conjunction with a claim against the State

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)

For construction and public improvement contracts, a separate protest procedure applies:

Low-Bidder Protest Under ORC § 153.12

When a state agency determines to award a public improvement contract to a bidder other than the apparent low bidder:

☐ The agency must notify the apparent low bidder of its intent

☐ The apparent low bidder must file a written protest within five (5) days of notification

☐ The agency must meet with the apparent low bidder to discuss the protest

☐ The agency then issues a final determination

This procedure applies specifically to construction contracts and is separate from the general DAS procurement protest process.

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
• Protester may seek monetary damages (bid preparation costs, lost profits in limited circumstances)
• Equitable relief (injunction, declaratory judgment)

Franklin County Court of Common Pleas:

• Injunctive relief to halt contract performance
• Declaratory judgment actions
• Mandamus actions to compel agency compliance with procurement law

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 written protest within the timeframe specified in the solicitation (typically 5-7 days of award notification for post-award protests; 5 business days before bid due date for pre-award protests).

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

☐ Franklin County Court of Common Pleas -- For actions seeking injunctive relief, declaratory judgment, or mandamus against state officials.

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 -- is it pre-award (5 business days before bid due date) or post-award (typically 5-7 days from notification)?

☐ 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 good-faith certification

☐ File with DAS Office of Procurement Services

☐ Serve copies on the using agency and awardee (if known)

☐ 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. No Formal Appeal Rights. Unlike many states, Ohio does not provide a statutory administrative appeal from a bid protest denial. The DAS decision is administratively final. Disappointed protesters must go directly to court.

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 Protests May Be Considered. While protests filed after the stated deadline are technically untimely, DAS retains discretion to consider late protests. However, relying on this discretion is risky and should not be a primary strategy.

4. Court of Claims for Damages. The Ohio Court of Claims has exclusive jurisdiction over civil claims against the State. If the protester seeks monetary damages (such as bid preparation costs or lost profits), the Court of Claims is the proper forum.

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. For public improvement contracts under ORC § 153.12, a separate low-bidder protest procedure applies with a five-day deadline. Do not confuse this with the general DAS procurement protest process.

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 Contracts)
• ORC § 2743.01 et seq. (Court of Claims Act)
• 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.