For the second post in our three part series regarding state-level bid protests in the DMV, we turn our attention to the District of Columbia. In our first post we discussed the authorities and procedures for Maryland procurement protests. That article can be found at this link.
As should be apparent by the end of this series, D.C.’s bid protest process has many features that distinguish it from the Maryland and Virginia protest regimes. For example, whereas the procuring agency itself is the initial protest forum for most Maryland and Virginia bid protests, in D.C., unless an exception applies, the D.C. Contract Appeals Board is the starting point for protests. There are also significant differences between the jurisdictions for other issues, such as the protester’s access to information, the involvement of political officials, the remedies available to a successful protester, etc.
To facilitate your own comparison, we offer you this digest of the District’s bid protest authorities and procedures, and we invite you to look for our final segment, on the Virginia bid protest process, coming soon.
GENERALLY RELEVANT LAW
Relevant DC statutes were revised by the Procurement Practices Reform Act of 2010.
AUTHORITY TO ISSUE SOLICITATIONS AND MAKE AWARDS
Generally, procurements are conducted by the D.C. Office of Contracting and Procurement (“OCP”), under the Chief Procurement Officer (“CPO”), unless an exception applies. For example, the Department of General Services, not OCP, is responsible for the procurement of facilities and facilities maintenance. The person given authority to form a contract on behalf of the Mayor and/or the CPO is called a Contracting Officer. Solicitations are posted on the OCP website, or in the case of an agency not covered by the OCP, on the agency website. An award of any multiyear contract, or contract with a 12-month base period exceeding $1 million, must be approved or “deemed approved” by the D.C. City Council. D.C. Code §§ 1-204.51 and 2-352.02. City Council approvals are publicly posted here.
INITIAL PROTEST FORUM
Other than agencies and acquisitions excepted under the D.C. Code, the D.C. Contract Appeals Board (“DCCAB”) is the initial protest forum. For excepted agencies and acquisitions, the procuring agency may have an agreement in place with the DCCAB for all protests to immediately go to the DCCAB, a bidder or offeror may be required to go through an agency level process, which may or may not require later appeal to the DCCAB, or full administrative exhaustion may occur before the agency without the involvement of the DCCAB.
TIME TO PROTEST
Generally, a protest of the terms of a solicitation must be filed with the DCCAB before bid opening or the deadline for receipt of proposals. Other protests, e.g., protests of an award, shall be filed “not later than 10 business days after the basis of protest is known or should have been known, whichever is earlier.” D.C. Code § 2-360.08(b). “A protest concerning a procurement conducted by an agency exempt from the Procurement Practices Act, which has entered into an agreement with the Board under Rule 101.8 to resolve protests, shall be filed with the Board within the time prescribed by the agency’s regulations.” D.C. Mun. Regs. Tit. 27, § 302.3. If the agency is completely independent of the DCCAB, the relevant solicitation should prescribe the timeliness rules, or the rules should be stated in the agency’s regulations.
ACCESS TO INFORMATION
At the DCCAB, 20 days after acknowledgement of the protest, the procuring agency must provide an agency report which includes relevant documents, such as copies of bids/proposals and evaluation reports. There is a protective order process to facilitate counsel being able to see protected information while prohibiting access to the actual protester. In some instances, limited discovery is allowed, the board may require an evidentiary hearing, and, if necessary, may issue a subpoena, which can be enforced by the D.C. Superior Court. For an agency level protest before an excepted agency, unless the agency’s rules provide for some type of agency report, the protester may need to make a D.C. Freedom of Information Act request in order to obtain additional information.
STAY OF PERFORMANCE
A contract may not be awarded if the Contracting Officer receives notice of a DCCAB protest beforehand. If the contract was already awarded, and “the contracting officer receives the notice of protest 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 that contract.” D.C. Mun. Regs. Tit. 27, § 304.2. The agency may implement a stay override based upon a showing of substantial evidence of urgent and compelling circumstances, but the protester may file a motion to challenge at the DCCAB within five business days of receiving notice of the override. For excepted procurements and acquisitions, specific agency regulations may also provide a stay of contract performance. Otherwise, the contractor may have to seek a preliminary injunction at the D.C. Superior Court in order to obtain a stay of performance. See D.C. v. Grp. Ins. Admin., 633 A.2d 2, 15 (D.C. 1993) (All Writs Act gives the D.C. Superior Court the authority to issue a preliminary injunction while a bid protest is pending).
PROTEST PROCEDURE
After the protest is initiated, the procuring agency must provide an agency report within 20 days, the protester has seven business days to respond to the information provided in the agency report, and thereafter the Board may seek further filings, or a hearing, depending on areas that may require further factual or legal development. Generally, a protest lasts 90 to 120 days, with the occasional protest lasting longer.
AVAILABLE REMEDIES
The DCCAB may order the procuring agency to terminate-for-convenience the awarded contract, re-compete the contract, issue a new or amended solicitation, or not to exercise a contract option. However, the DCCAB will not order an agency to award the contract to a specific bidder or offeror. Under certain circumstances, the protester may recover bid/proposal preparation costs and legal fees.
GOING TO COURT
A DCCAB protest decision is reviewable in a court of law. The appeal should first go to the D.C. Superior Court. See D.C. Mun. Regs. Tit. 27, § 312.2(a); MorphoTrust USA, Inc. v. D.C., 115 A.3D 571, 580 (D.C. 2015); but see D.C. Code § 2-360.05 (direct appeal to the D.C. Court of Appeals for DCCAB decisions on performance disputes).
Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. The author has provided the links referenced above for information purposes only and by doing so, does not adopt or incorporate the contents. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS. Please contact the author if you would like to receive written advice in a format which complies with IRS rules and may be relied upon to avoid penalties.
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