Bidders Beware: State Supreme Court Decision Puts Spotlight on Time Standards and Other Guidelines
The West Virginia Supreme Court of Appeals’ recent decision in State ex rel. Maple Creative, LLC v. Tincher, No.35504 (W. Va. June 18, 2010) will be of particular interest to contractors seeking work on state government projects. The case involved a bid by an in-state advertising agency, Maple Creative, LLC for advertising work with the West Virginia Division of Tourism. As a West Virginia company, Maple Creative was entitled to certain preferences in the bid process.
When the bids were received, the Division of Tourism officials omitted Maple Creative’s preferences from its point total. Though Maple Creative would have been the winning bidder, the bid was awarded to an Ohio company on December 29, 2009. On January 8, 2010, the vice president of Maple Creative reviewed the tallies for the various bidders and notified the state of the mistake. In response, the Division of Tourism’s assistant director stated that the division would, “take a look at it and if we are wrong, we will reverse it, if we are right, it will stay the way it is.” That same day, Maple Creative delivered a letter indicating its intent to protest the award. It did not formally submit its bid protest, however, until January 15, 2010.
The Supreme Court was tasked with deciding whether Maple Creative’s bid protest was valid or, in the alternative, whether the statement from the Division of Tourism was binding on the state. The applicable state regulation, 148 C.S.R. § 1-8.1 provides that all bid protests must be submitted no later than five business days after the award of the bid. Maple Creative argued that its protest should be accepted because: (1) the holiday season delayed its response; (2) the state failed to send notice of the award by first class mail; (3) the effective date of the contract was a holiday; (4) it did not learn of the award until January 7, 2010; and, (5) the assistant director’s statement prohibited the state from excluding the protest. The Supreme Court construed the regulation strictly and because Maple Creative had not filed its protest within five business days, the state did not need to consider it.
While this case deals only with the issue of bid protests, the Supreme Court’s decision indicates that the regulations and procedures for the submission and award of state government bids will be strictly interpreted. This means that contractors seeking to perform state work must pay particular attention to time standards and other procedural guidelines or risk losing their work, even if they would otherwise win the bid.