Legislative Update: Bid Protest Law Changes to Benefit Contractors

By Brett Hill

A new statute became effective July 28, 2019 that benefits contractors who have bid protests in Washington. A bid protest is the only way for disappointed bidders to challenge irregularities in the public bidding process on public works projects. Bid protests ensure the integrity of the public bidding system and are the contractor’s only remedy if its bid is improperly rejected or the winning bidder has errors in its bid that render it nonresponsive.

Under the old law, a contractor was required to submit their bid protest within 2 days after the bid opening. The problem was that a contractor often does not know the basis to protest an award without seeing the other bids to determine whether the winning bid was responsive. Many owners provide copies of the bids if requested at the bid opening, but some contractors found that owners were refusing to provide copies of the other bids until after the 2-day protest period expired.

The new law, which passed this last Legislative session[1], states that a contractor has two days after the bid opening to either submit a written protest or request copies of the competing bids. If the contractor requests copies of the competing bids from the owner, the contractor then has until 2 days after the competing bids are provided by the owner before the contractor is required to submit its bid protest.

If the contractor does not request copies of the competing bids within two days after the bid opening, the old rule still applies, and the contractor must submit its written protest to the owner within two days after the bid opening.

Comment:  The law is a significant win for contractors in Washington. The law was sponsored by the National Utility Contractors Association of Washington (NUCA) and Ceslie Blass and I participated in drafting this new law.  The law provides contractors with additional time and information to determine if their bid was improperly rejected by guaranteeing contractors an opportunity to review competing bids if a timely request is made.  Contractors should consider requesting copies of competing bids if their bid is rejected.

[1] Engrossed Substitute Senate Bill 5418.

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