Global Tel*Link Corp. v. Washington State Department of Corrections, et al., 24 Wn. App. 2d 852, 521 P.3d 250 (Div. II, December 6, 2022). An unsuccessful public contract bidder’s claim is moot once the contract is executed.
The Court of Appeals recently confirmed, in Global Tel*Link Corp. v. Washington State Department of Corrections, et al.,[1] that an unsuccessful public contract bidder’s claim is moot once the contract is executed. Since 2006, Global Tel*Link Corporation (“GTL”) has provided telephone, internet, and related services to incarcerated individuals in Washington under a contract with Washington’s Department of Corrections (“DOC”). In August 2019, DOC issued a “procurement notice” stating that DOC was seeking a qualified vendor to provide incarcerated individual technology services (“IITS”) to incarcerated individuals and requesting interested vendors to submit certain materials. GTL submitted a response to the notice and a further response in phase 2 of the process.
In December of 2019, DOC notified GTL that it did not select GTL to move on to the next stage of the IITS client services procurement process. In March 2020 and April 2021, GTL sent DOC formal complaints stating that the procurement notice and procedures did not comply with Washington’s procurement law. In response, DOC explained that it issued the IITS procurement process under the “client services” exception to the requirement of competitive solicitation.
On January 12, 2022, DOC sent an email to GTL stating that DOC had selected Securus as its IITS vendor. On January 14, 2022, GTL filed suit against DOC, seeking declaratory and injunctive relief. Securus subsequently intervened as a defendant. GTL sought an injunction to prevent execution of the contract.
Before the scheduled injunction hearing, the trial court granted Securus’s motion to dismiss under CR 12(b)(6) based on waiver and laches. GTL appealed, and then filed a motion with this court requesting a stay of the execution of the DOC/Securus contract. A Court of Appeals commissioner denied the stay. DOC and Securus executed the IITS contract on April 12, 2022.
GTL appealed, arguing that it could pursue its appeal even though DOC and Securus had executed the IITS contract because GTL had continued standing. Securus and DOC argued that GTL’s appeal was moot because DOC had executed its contract with Securus, and therefore GTL no longer had a cause of action.
The general rule is that when a court can no longer provide meaningful relief, the case is moot. The policy consideration for the general rule disallowing damages actions for non-award of public contracts is protection of the public treasury before protection of bidders:
‘Even where an illegal contract increases expense to the public, bidder injunctions against performance are not the proper way to vindicate public rights. Private suits are motivated by the bidder’s desire to rebid and improve its chances to obtain an award. The best way to ensure that lawsuits are brought in the public interest is to restrict standing to those whose rights are at stake – the taxpayers.’
24 Wn. App. 2d at 858 (quoting Dick Enterprises, Inc. v. King County, 83 Wn. App. 566, 570, 922 P.2d 184 (1996)). While using contract formation as a bright-line cutoff point for bidder standing necessarily limits the protection of bidder rights, Washington courts hold that the bidder’s only remedy is to seek an injunction before contract formation.
After a lengthy review of Washington cases, the court confirmed the bright-line rule: Washington law establishes that an unsuccessful public contract bidder’s claim is moot once the contract is executed. The court held that under this settled Washington law, GTL’s appeal became moot once DOC and Securus executed the IITS contract.
This case serves as a reminder that no matter how unfair the handling of a particular bid process may appear or the number of valid challenges a contractor may have to awarding the bid to another contractor, Washington’s bright-line rule ends any chance for a challenge once a contract is executed. Contractor’s must make every effort to timely challenge an award before a contract is executed or else lose any reasonable chance for overturning the award.
[1] 24 Wn. App. 2d 852, 521 P.3d 250 (Div. II, December 6, 2022).