You submitted a great bid to Minnesota-based procurement agency Sourcewell, but you didn’t win.[1] In this scenario, don’t fall into the Minnesota Nice tendency to “substitute[e] passive-aggressiveness for direct confrontation.”[2] Instead, you should bring a bid protest to get the award you should have gotten. Bid protests against Sourcewell must be direct, firm, and founded on an effective strategy. This article lays out the primary components of a properly assembled bid protest against Sourcewell.
A bid protest is a “written objection to the conduct of a government agency in acquiring supplies and services for its direct use or benefit.”[3] To put that in simpler terms: a bid protest is a complaint to the government that it awarded a contract incorrectly.
Bid protests are unique in the field of contracts. The vast majority of the time, a contracting party is given complete freedom to choose to contract with whomever they would like for whatever reason they wish. But government procurement is different. When the government contracts for goods for the public good, there are additional safeguards put in place to ensure that contracts aren’t awarded on an arbitrary basis.[4] Those standards are laid out in statute, case law, and the actual Requests for Proposals (“RFPs”) promulgated by procurement agencies. The government must adhere to these standards “[i]n an effort to advance the transparency, fairness, and integrity of the procurement system.”[5] When the government deviates from those standards, disappointed bidders may utilize the bid protest.
I. There’s Little Time for Indecisiveness: The Limited Timeframe for a Bid Protest
The first consideration for every successful bid protest is the limited time frame. Bid protests are due just 10 business days from notification of non-award and need to be hand-delivered to Sourcewell’s headquarters in Staples, MN. This is an extremely short time frame and is one of the primary challenges of mounting a successful protest.
That difficulty is compounded by the short time frames given for debriefs. After receiving a notice of denial, Sourcewell allows applicants to conduct debriefs of their score so they can determine how their application could have been better. Sourcewell typically provides very few times for debriefs, and most often the earliest time for a debrief is mere days before a bid protest is due.
The topics of discussion in these debriefs are exceptionally important to the bid protest, as Sourcewell will provide specific feedback as to why certain scores were awarded. Non-awardees interested in protesting need to be vigilant for notification of non-award and should request to conduct debriefing as soon as possible for use within their bid protest. In addition, non-awardees should reach out to Eckland and Blando as soon as possible if they are interested in protesting, as we can advise you on the proper routes to take.
II. Effective Protests Challenge Significant Criteria and the “Natural Break.”
The foundation of a winning bid protest is attacking Sourcewell’s scoring criteria. Sourcewell evaluates all RFPs with the same scale that evaluates 6 factors:
- Financial Viability and Marketplace Success
- Ability to Sell and Deliver Solutions
- Marketing Plan
- Value-Added Attributes
- Depth and Breadth of Offered Solutions
- Pricing
Applicants are scored on a 1,000-point scale. However, the 6 factors are not weighted the same. Pricing accounts for the highest number of points to be awarded at 400. The Depth and Breadth category accounts for 200 points. Ability to Sell and Deliver Solutions is weighted at 150. Marketing Plan and Value-Added Attributes are both weighted at 100. Financial Viability and Marketplace Success is weighted at just 50.
A bid protest therefore must consider the differentials in scoring for each criterion. For example, an application that is scored 10% too low in the “Financial Viability” criterion would translate to 5 points too low. An application that is 10% too low in “Pricing” is 40 points too low. Successful bid protests don’t “miss the forest for the trees” but instead focus primarily on the heavily scored portions of the application.
Sourcewell’s typical RFP lacks a cap on awardees, meaning a bid protest does not need to argue your company should have received an award over some other awardee. However, comparison to other awardees provides a helpful frame of reference for your bid protest other than Sourcewell’s broad scoring guide.[6] By comparing your score to other awardees, or awardees of the past, a protest grounds its claims of incorrect scoring in precedent.
Helpful things to compare include each entity’s relative market size (relevant for “Financial Viability and Marketplace Success”), discounts offered to the government (relevant for pricing), and depth of advertising (relevant for “Marketing Plan”).
Sourcewell’s awards must also contain what’s known as a “natural break” in scoring. The idea behind a natural break is intuitive. When Sourcewell awards a contract to the lowest-scoring awardee, the difference between that awardee and the highest-scoring non-awardee needs to be natural. If the difference between obtaining a contract and not obtaining a contract was just a few points, it’s arbitrary to cut off awards due to such a small difference. The difference between the winners and losers must be notable.
Attacking the “natural break” identified by Sourcewell is another component of an effective bid protest. While Sourcewell often makes the scores of other awardees difficult to obtain in a timely fashion, the first thing a disappointed applicant can do is determine what the natural break for their RFP is. In the past, Sourcewell has had a “break” of a single-digit number of points. Adjusting that to a percentage, Sourcewell has had “breaks” based on a less-than-1% difference in application score—which hardly reads as a natural cutoff point. A challenge to the natural break is worth noting, in a bid protest, even if the protester is not the highest-scoring non-awardee.
Conclusion
There are many other viable arguments to be made against Sourcewell in an effective protest—each dependent on the specific factual circumstances of the applicant, the RFP, and other factors. Non-awardees considering pursuing a bid protest should reach out to Eckland & Blando. We may be Minnesota-based, but our Bid Protests are far from Minnesota Nice. We’ll help you assess your options and make your case directly and firmly before the short clock runs out. Our attorneys have experience and expertise in this field and can help you mount an effective challenge to an arbitrary award from Sourcewell—as we have done in the past.
If you are seeking to bring a bid protest against Sourcewell or any other government entity, please contact the experienced bid protest attorneys at Eckland & Blando LLP.
[1] Co-authored by Mitchell Zaic, associate at Eckland & Blando, LLP.
[2] Rachel Hutton, What is Minnesota Nice and Where Did The Term Originate, Minnesota Star Tribune (Apr. 23, 2019).
[3] David H. Carpenter & Moshe Schwartz, Cong. Rsch. Serv., R45080, Government Contract Bid Protests: Analysis of Legal Processes and Recent Developments 1 (Nov. 28, 2018). The overall goals of state and federal bid protests are largely the same.
[4] Rochester City Lines, Co. v. City of Rochester, 868 N.W.2d 655, 660–61 (Minn. 2015), abrogated on other grounds by Minn. Stat. § 471.345, subd. 21.
[5] Carpenter & Schwartz, supra note 2, at 1.
[6] https://cdn.sourcewell.org/public/procurement/evaluator-scoring-guide.pdf