Government Contract Bid Protest

GOVERNMENT CONTRACT BID PROTEST

State of Washington

OVERVIEW OF WASHINGTON PROCUREMENT PROTEST LAW

Washington's procurement protest procedures are governed by RCW 39.26.170, the policies of the Department of Enterprise Services ("DES"), and individual agency protest procedures. Under RCW 39.26.170, all agencies with original or delegated procurement authority for goods or services must maintain a clear and transparent protest process. The protest period must commence after the apparent successful bidder is announced but before the contract is signed. Washington's framework is notable for requiring each agency to establish its own protest procedures, which means specific deadlines and requirements may vary by agency. For public works contracts, the separate provisions of RCW 39.04.105 apply.

Key Statutory and Regulatory Framework

TWO TYPES OF CHALLENGES

Type 1: Complaints (Pre-Bid)

What may be challenged: Terms, conditions, or specifications of the solicitation document before the bid/proposal submission deadline.

Deadline: Must be submitted at least five (5) business days prior to the bid response deadline (per DES Policy DES-170-00).

Purpose: To resolve concerns about the solicitation before proposals are due, so the agency can amend or clarify the solicitation if appropriate.

Type 2: Protests (Post-Award)

What may be challenged: The apparent successful bidder announcement or the award recommendation.

Deadline: Must be filed within the protest period established by the solicitation -- which begins after the apparent successful bidder is announced and ends before the contract is signed. DES Policy DES-170-00 typically establishes a minimum protest period; individual solicitations may specify longer periods. Common protest windows range from three (3) to five (5) business days from the announcement of the apparent successful bidder.

Important: The specific protest deadline is set in each individual solicitation. Always review the solicitation terms for the applicable protest window.

FILING REQUIREMENTS AND DEADLINES

Protest Filing Details

Required Content of Protest

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

☐ Name and title of the authorized representative

☐ Solicitation number and title

☐ Name of the contracting agency

☐ Clear identification of the specific solicitation provision, requirement, or evaluation criterion at issue

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

☐ Description of the relief or remedy sought

☐ All supporting documentation and evidence

☐ Signature of the protester or authorized representative

Standing Requirements

The protester must be an actual or prospective bidder/offeror with a direct economic interest affected by the challenged action.

☐ The protester submitted a timely bid/proposal in response to the solicitation

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

☐ The protester has an economic interest that would be directly impacted by the challenged action

GROUNDS FOR PROTEST

Pre-Bid Complaints

☐ The solicitation contains unduly restrictive specifications that limit competition

☐ The solicitation terms are ambiguous, inconsistent, or defective

☐ The evaluation criteria are unclear or improperly established

☐ The solicitation improperly favors a particular vendor or product

☐ Mandatory qualification requirements are unreasonable or unrelated to the procurement

☐ The solicitation violates RCW 39.26 or applicable procurement rules

☐ Other: [________________________________]

Post-Award Protests

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

☐ The apparent successful bidder does not meet mandatory requirements

☐ The apparent successful bidder submitted a materially noncompliant bid/proposal

☐ The contracting agency failed to follow the solicitation evaluation methodology

☐ The evaluation scoring contained errors or inconsistencies

☐ 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 award was not made to the lowest responsive and responsible bidder (for IFBs)

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

☐ The agency permitted a bidder to change a nonresponsive bid into a responsive bid through negotiation (violation of RCW 39.26.160)

☐ The agency improperly rejected the protester's bid for prior performance without sufficient basis

☐ The agency failed to follow its own published procurement procedures

☐ Other: [________________________________]

FORMAL BID PROTEST DOCUMENT

BEFORE THE [AGENCY NAME / DEPARTMENT OF ENTERPRISE SERVICES]
STATE OF WASHINGTON

BID PROTEST

I. INTRODUCTION

This Protest is submitted by [________________________________] ("Protester") pursuant to RCW 39.26.170 and the protest procedures set forth in Section [________________________________] of Solicitation No. [________________________________], challenging the [________________________________] (describe: announcement of apparent successful bidder / evaluation results / rejection of Protester's bid or proposal) issued by [________________________________] ("Agency"). The Protester respectfully requests that the Agency review the challenged action and grant the relief described herein.

II. IDENTIFICATION OF PROTESTER

III. TIMELINESS OF PROTEST

This Protest is filed within the protest period established by the Solicitation. The announcement of the apparent successful bidder was made on [__/__/____]. Section [________________________________] of the Solicitation establishes a protest deadline of [__/__/____]. This Protest is filed on [__/__/____], which is within the protest window.

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

Protester's submission was received by the Agency and identified as [________________________________] (reference number, if applicable).

V. IDENTIFICATION OF PROCUREMENT

VI. STATEMENT OF FACTS

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

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

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

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

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

5. On [__/__/____], the Agency announced [________________________________] as the apparent successful bidder.

6. The Agency's evaluation results indicated [________________________________] (describe scoring, ranking, or relevant outcomes as known).

7. [________________________________]

8. [________________________________]

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

VII. SPECIFIC GROUNDS FOR PROTEST

Ground 1: [________________________________]

[________________________________]
[________________________________]
[________________________________]

This action violates RCW [________________________________] / Section [________________________________] of the Solicitation / DES Policy [________________________________] because: [________________________________]

Ground 2: [________________________________]

[________________________________]
[________________________________]
[________________________________]

Ground 3: [________________________________]

[________________________________]
[________________________________]
[________________________________]

(Add additional grounds as necessary.)

VIII. PREJUDICE TO PROTESTER

Protester was prejudiced by the Agency's action because, but for the errors described above, Protester would have had a substantial chance of being selected as the apparent successful bidder. Specifically:

[________________________________]
[________________________________]
[________________________________]

IX. REQUESTED RELIEF

Protester respectfully requests that the Agency:

☐ Sustain this Protest and find the challenged action improper;

☐ Cancel the designation of [________________________________] as apparent successful bidder;

☐ Direct re-evaluation of all bids/proposals in accordance with the stated criteria;

☐ Cancel and re-solicit the procurement;

☐ Designate Protester as the apparent successful bidder;

☐ Amend the solicitation to cure the identified deficiencies;

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

☐ Decline to execute the contract until the protest is fully resolved;

☐ Grant such other and further relief as the Agency deems appropriate.

X. SUPPORTING DOCUMENTATION

The following documents are attached in support of this Protest:

☐ Exhibit A: Copy of the Solicitation (or relevant excerpts), including protest procedures

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

☐ Exhibit C: Copy of Announcement of Apparent Successful Bidder

☐ Exhibit D: Evaluation Summary or Scoring (if available)

☐ Exhibit E: Correspondence with the Agency

☐ Exhibit F: [________________________________]

XI. CERTIFICATION

I, [________________________________], hereby certify under penalty of perjury under the laws of the State of Washington that the statements in this Protest are true and correct to the best of my knowledge, information, and belief.

Executed at [________________________________], Washington, on [__/__/____].

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

Procurement Coordinator / Protest Officer:
[________________________________]
[________________________________]
[________________________________]

Contracting Agency:
[________________________________]
[________________________________]
[________________________________]

Apparent Successful Bidder (if required by solicitation):
[________________________________]
[________________________________]
[________________________________]

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

STAY OF AWARD / CONTRACT EXECUTION

Statutory Protest Period

Under RCW 39.26.170, the protest process must include a protest period after the apparent successful bidder is announced but before the contract is signed. This means the agency is generally prohibited from executing the contract during the protest period.

Director's Authority to Override

The DES Director may grant authority for an agency to sign a contract before the protest process is completed due to exigent circumstances (RCW 39.26.170). To sign a contract before the protest is resolved, the agency must request and receive authority from the DES Director.

Seeking Additional Stay

If the protest period has expired or the Director has authorized early execution:

☐ Request that the Agency voluntarily delay contract execution pending protest resolution

☐ Seek injunctive relief from Thurston County Superior Court through a Temporary Restraining Order (TRO) and/or Preliminary Injunction

☐ File a petition for judicial review under the Administrative Procedure Act (RCW 34.05)

Requirements for Injunctive Relief (Superior Court)

To obtain injunctive relief in Washington, the protester must demonstrate:

1. The moving party has a clear legal or equitable right
2. The moving party has a well-grounded fear of immediate invasion of that right
3. The acts complained of are either resulting in or will result in actual and substantial injury
4. The balance of equities favors the moving party

PUBLIC WORKS CONTRACTS (RCW 39.04.105)

For competitive bidding on public works contracts, a separate protest procedure applies under RCW 39.04.105:

Key Requirements

☐ Bid Copies: A bidder may request copies of all bids within two (2) business days of the bid opening

☐ Protest Deadline: Written protest must be filed within two (2) full business days after receiving the requested bid copies

☐ Filing: Submit written protest to the awarding agency

☐ Injunctive Relief: If the protest deadline passes or the agency denies the protest before contract execution, the protester may seek injunctive relief in court (TRO, summons, and complaint)

Important: Public works contract protests under RCW 39.04.105 have much shorter deadlines than goods and services protests under RCW 39.26.170. Confirm which statute applies to your procurement.

REMEDIES AVAILABLE

Administrative Remedies (Agency Decision)

• Cancellation of the apparent successful bidder designation
• Re-evaluation of bids or proposals
• Re-solicitation of the procurement
• Amendment of solicitation terms (pre-bid)
• Other corrective action

Judicial Remedies

• Temporary Restraining Order to prevent contract execution
• Preliminary and Permanent Injunction
• Declaratory judgment
• Judicial review under the Administrative Procedure Act (RCW 34.05)
• Writ of mandamus to compel agency compliance with procurement law

APPEAL PROCESS

Step 1: Agency-Level Protest

File written protest within the protest period specified in the solicitation (after announcement of apparent successful bidder, before contract execution).

Step 2: Agency Decision

The protest officer or procurement coordinator reviews the protest and issues a written decision. The agency must respond to the protest within the timeframe established in its protest procedures.

Step 3: Agency Head Review (if available)

Some agencies provide for an internal appeal to the agency head or designee. Review the solicitation and agency policies for internal appeal procedures.

Step 4: Judicial Review

If the protest is denied and no further administrative remedies are available:

☐ Petition for Judicial Review under the Administrative Procedure Act (RCW 34.05.570) -- Filed in Thurston County Superior Court or the county where the agency is headquartered.

☐ Direct Court Action -- Complaint for injunctive or declaratory relief in Superior Court.

Filing Requirements for Judicial Review Under APA:

☐ Petition for Judicial Review filed within 30 days of the final agency action (RCW 34.05.542)

☐ Service on the agency

☐ Filing fee as required

☐ Designation of the agency record

☐ Briefing per court schedule

Thurston County Superior Court Address:
Thurston County Superior Court
2000 Lakeridge Drive SW
Building 2
Olympia, Washington 98502

Standard of Judicial Review (RCW 34.05.570)

The court may grant relief if the agency action:

• Violates constitutional provisions
• Exceeds the statutory authority of the agency
• Was taken by persons not authorized to act
• Was made upon unlawful procedure
• Is not supported by substantial evidence (in adjudicative proceedings)
• Is arbitrary or capricious
• Is outside the range of discretion delegated to the agency

DES CONTACT INFORMATION

Department of Enterprise Services
Enterprise Procurement Policy Team
1500 Jefferson Street SE
Olympia, Washington 98501

Phone: 360-407-2210
Email: [email protected]
Website: https://des.wa.gov

FILING CHECKLIST

Pre-Filing

☐ Review the solicitation for the specific protest period and protest procedures (deadlines vary by agency and solicitation)

☐ Confirm whether the procurement is for goods/services (RCW 39.26) or public works (RCW 39.04.105) -- different rules apply

☐ Confirm that the protest is filed during the protest window (after announcement of apparent successful bidder, before contract signing)

☐ Verify that the protester has standing (submitted a bid/proposal, has direct economic interest)

☐ Identify all grounds for protest with specificity

☐ Gather all supporting documentation

☐ Identify the protest officer or procurement coordinator designated in the solicitation

☐ Consult with qualified Washington procurement counsel

Filing

☐ Complete the protest document with all required information

☐ Reference the specific solicitation provision violated and the applicable statute

☐ Attach all supporting exhibits

☐ Sign the protest and include the certification under penalty of perjury

☐ File with the protest officer or procurement coordinator identified in the solicitation

☐ Serve copies on the contracting agency and apparent successful bidder (if required)

☐ Retain proof of filing date and service

Post-Filing

☐ Confirm receipt of the protest by the agency

☐ Monitor for the agency's response within the timeframe stated in its procedures

☐ Respond to any requests for additional information

☐ Check whether the agency is proceeding with contract execution (if so, consider injunctive relief)

☐ Await the agency's written decision

☐ If denied, evaluate judicial review options (30-day deadline for APA petition)

☐ Consider whether emergency injunctive relief is needed to prevent contract execution

☐ Preserve all communications and procurement records

PRACTICE NOTES

1. Agency-Specific Procedures. Washington law requires each agency to establish its own protest procedures. The protest deadline, format, and requirements may vary significantly between agencies and even between individual solicitations. Always check the specific solicitation for its protest provisions.

2. Protest Window Is Before Contract Execution. The protest must be filed after the apparent successful bidder is announced but before the contract is signed. Once the contract is executed, the protest window is closed. Time is of the essence.

3. Goods/Services vs. Public Works. Different statutes govern protests for goods and services procurement (RCW 39.26.170) and public works contracts (RCW 39.04.105). Public works protests have extremely short deadlines -- as little as two business days. Confirm which statute applies.

4. Exigent Circumstances Exception. The DES Director may authorize contract execution before the protest process is completed due to exigent circumstances. Monitor for any such authorization, which may require the protester to seek emergency injunctive relief.

5. Debrief Requests. Many agencies offer debriefings to unsuccessful bidders. A debrief can provide valuable information about the evaluation and scoring that may support or inform a protest. Request a debrief promptly after the announcement.

6. Public Records Act. Washington's Public Records Act (RCW 42.56) provides broad access to government records. File a records request for evaluation documents, scoring matrices, committee notes, and communications. The request should be filed early, as agencies have varying response times.

7. Protest Officer Certification. Under DES Policy DES-170-00, agencies must designate a protest officer. Confirm who the designated protest officer is and file the protest with that person.

8. Negotiation Limitations. RCW 39.26.160 provides that an agency may not use negotiations to permit a bidder to change a nonresponsive bid into a responsive bid. If there is evidence that the apparent successful bidder's originally nonresponsive bid was made responsive through improper negotiations, this is a strong protest ground.

9. Local Government Procurements. This template focuses on state-level procurements. Local government procurements (cities, counties, special districts) may have different protest procedures governed by local ordinances or policies.

SOURCES AND REFERENCES

• RCW Chapter 39.26 (Procurement of Goods and Services): https://app.leg.wa.gov/rcw/default.aspx?cite=39.26
• RCW 39.26.170 (Complaints and Protests): https://app.leg.wa.gov/rcw/default.aspx?cite=39.26.170
• RCW 39.04.105 (Competitive Bidding - Written Protests): https://app.leg.wa.gov/rcw/default.aspx?cite=39.04.105
• DES Policy DES-170-00 (Complaints and Protests): https://www.des.wa.gov/policies-legal/policies-laws-rules-search/complaints-and-protests-des-170-00
• Department of Enterprise Services: https://des.wa.gov
• RCW 34.05 (Administrative Procedure Act)
• RCW 42.56 (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 Washington attorney before filing a bid protest.