Bradley has been publishing an ongoing survey of state-level bid protest processes and procedures (see, e.g., our post on “Bid Protests in New York,” “Bid Protests in Virginia,” and our “Update on Bid Protests in Alabama”). For the next article in this series, we focus on the bid protest procedures in the District of Columbia.

Who May Protest and When?

• An “aggrieved person,” defined by the District of Columbia Municipal Regulations (DCMR) as an “actual or prospective bidder or offeror (i) whose direct economic interest would be effected by the award of a contract or by the failure to award a contract, or (ii) who is aggrieved in connection with the solicitation of a contract,” may protest to the D.C. Contract Appeals Board ((the “Board”). 27 DCMR § 199.1).
• A protest based upon alleged improprieties in a solicitation that are apparent prior to bid opening or the time set for receipt of initial proposals shall be filed with the Board prior to bid opening or the time set for receipt of initial proposals (27 DCMR § 302.2(a)).
• In procurements where proposals are requested, alleged improprieties that do not exist in the initial solicitation, but that are subsequently incorporated into the solicitation, shall be protested not later than the next closing time for receipt of proposals following the incorporation.
• In all other instances, protests shall be filed no later than 10 business days after the basis of protest is known or should have been known, whichever is earlier (27 DCMR § 302.2(b)).
• Notably, the Board allows interested parties (e.g., the awardee) to intervene and represent their interests in the outcome of the protest (27 DCMR § 305.3).

What Must the Protest Contain?

• A protest must be in writing and filed with the Board either electronically or via two paper copies by hand delivery, mail, or commercial carrier within the time limits discussed above. The protester is also responsible for filing a copy on the contracting agency, with proof of service to the Board (27 DCMR § 302.1).
• The protest must contain:
  • The name, address, and telephone number of the protester;
  • The identity of the contracting agency, the number and date of the solicitation, and if a contract has been awarded, the number and date of the contract and to whom the contract was awarded, if known;
  • A clear and concise statement of the legal and factual grounds of the protest, including copies of relevant documents, and citations to statutes, regulations, or solicitation provisions claimed to be violated;
  • Information establishing the timeliness of the protest;
  • Information establishing that the protester is an “aggrieved person” for the purpose of filing the protest; and
  • The relief sought by the protester.
• In addition, a protest may request a protective order, request specific documents relevant to the protest grounds, and request a hearing.
• Protests shall be signed by the protester or by an authorized representative or attorney.
• A protest may be dismissed for failure to comply with any of the requirements listed above (i.e., 27 DCMR § 301).

Is There a Stay of Award During the Protest?

• Within one business day of receipt of the protest, the Board shall notify the contracting officer that the protest has been filed (27 DCMR § 303.1(a)).
• Except as provided by law, no contract shall be awarded in any procurement after the contracting officer has received the notice and while the protest is pending (27 DCMR § 304.1).
• If an award has already been made but the contracting officer receives notice within 11 business days after the date of award, the contracting officer “shall immediately direct the awardee to cease performance under the contract and to suspend any related activities that may result in additional obligations being incurred by the District under the contract” (27 DCMR § 304.2).
• Except as provided by law, performance and related activities suspended pursuant to law may not be resumed while the protest is pending.

Performance under a protested procurement may proceed, or award may be made, while a protest is pending only if the Director of the Office of Contracting and Performance makes a written determination, supported by substantial evidence, that urgent and compelling circumstances that significantly affect interests of the District will not permit waiting for the decision of the Board concerning the protest. A copy of the determination shall be provided within one business day of issuance to both the Board and the protester (27 DCMR § 304.3).

When Will a Decision on the Protest Be Issued?

• The written decision of the Board, based solely on the record, shall be issued within 60 business days from the date on which the protest is filed (27 DCMR § 312).

Why Types of Relief May the Board Grant?

• If the Board determines, in sustaining a protest, that the solicitation, proposed award, or award does not comply with the applicable law, regulations, or terms and conditions of the solicitation, the Board may order the contracting agency to do one or more of the following:
  • Terminate the contract for the convenience of the District government;
  • Refrain from exercising any options under the contract;
  • Recompete the contract;
  • Issue a new solicitation;
  • Award a contract consistent with the law and regulations; or
  • Take such other action, except enjoining a contract award, as the Board may direct (27 DCMR § 314.1).
• A determination of the appropriate remedy shall be based on considerations such as: (a) best interests of the District government; (b) seriousness of the procurement deficiency; (c) existence of prejudice to other bidders; (d) maintaining the integrity of the procurement system; and (e) good faith of District government officials and other parties (27 DCMR § 314.2).
• The board may, when requested, award reasonable bid or proposal preparation costs and costs of pursuing the protest, not including legal fees, if it finds that the District government’s actions toward the protester or claimant were arbitrary or capricious.
• Notably, the Board may require the protester to pay reasonable attorneys’ fees for time counsel spent representing the agency in defending the frivolous protest or its frivolous part (27 DCMR § 308.2).
• If the entire protest is dismissed on frivolous grounds, the Board may also assess the protester additional damages for each day the contract was suspended equal to the amount of liquidated damages specified in the contract for late completion of the contract.

What Are the Appeal Procedures?

• Any interested party who filed comments on the agency report may, by motion, request that the Board reconsider a decision (27 DCMR § 313).
• A protester may seek judicial review of the Board’s decision by filing a petition for review of agency action in the Superior Court of the District of Columbia (27 DCMR § 312.2).