In an Alaska bid protest case, a hearing examiner found serious improprieties by procurement officials in the bid evaluation process. The court held that the officials were entitled only to qualified immunity, not absolute immunity.
A disappointed bidder learned after the contract was awarded to another contractor that the five evaluations of its bid contained grave deficiencies. The disappointed bidder filed a protest which was heard after the contract was awarded to another contractor but the protestor was awarded only its bid preparation costs.
Disappointed by the outcome of the hearing process, the protestor filed a lawsuit against four procurement officials as individuals. The procurement officials took the position that their actions were protected by absolute immunity. Absolute immunity immunizes officials from suit for all official acts without regard to motive. The court, applied a “three factor” test and found that the importance of ensuring transparency in the State’s procurement process and that low instances of similar actions against procurement officials favored granting procurement officials qualified immunity not absolute immunity.
Qualified immunity provides officials with substantial protection from liability. Officials under qualified immunity are liable only if they act negligently which protects officials for liability arising out of a knowing violation where that official lacked the requisite degree of bad faith. For an official with qualified immunity to be held liable, his or her conduct must have been outrageous or evidenced reckless indifference to the interest of another person. The court held that qualified immunity affords its officials substantial protection from liability, however if a contractor is able to show that the bid evaluator’s conduct was outrageous or recklessly indifferent, the contractor could recover against the procurement officials personally. Weed v. Bachner Company, Inc., 230 P.3d 267 (2010).
Comment: After a contract is awarded, a protestor’s recovery is generally limited to bid preparation costs. In most instances, this hollow victory does not justify the effort of a court battle. This case provides a disappointed bidder with an avenue for redress when procurement officials’ evaluation of bid crosses the line into the territory of reckless indifference for an evenhanded, fair and unbiased bid selection process.