Bid Protests in Illinois

Bradley has been publishing an ongoing survey of state-level bid protest processes and procedures (e.g., our posts on “Bid Protests in North Carolina,” “Bid Protests in Georgia,” “Bid Protests in the District of Columbia,” “Bid Protests in New York,” “Bid Protests in Virginia,” and our “Update on Bid Protests in Alabama”). For the next state in this series, we focus on the bid protest procedures in Illinois.

Link to What Rules Apply? What Rules Apply?

• There are four separate chief procurement officers established by the Illinois Administrative Code, one chief procurement officer (CPO) for each of the following: General Services, Public Institutions of Higher Education, the Department of Transportation, and the Capital Development Board. 44 Ill. Adm. Code §§ 1.1-30.205.
• Although each CPO has a separately codified protest procedure, the majority of general contracting actions flow through the CPO for General Services (CPO-GS), the protest procedure on which we will focus our summary. If your procurement is managed by one of the other three CPOs, the general protest procedures apply, but will require analysis and reliance on separate Illinois Administrative Code cites. Id. at § 4.5500-4.5550; § 6.390-6.440; and § 8.2075-8.2076.

Link to Who May Protest and When? Who May Protest and When?

• “Any person may submit a protest related to the notice of the procurement, the solicitation document, any pre-submission conference, and any decision to reject a late bid, proposal or response.” Id., § 1.5550(a)(1).
• “Any person who has submitted a bid, proposal or response may protest a decision to reject that person’s bid, proposal, or response or the decision to award to another bidder, offeror or respondent.” Id., § 1.5550(a)(2).
• A protester must submit a protest in writing to the Protest Review Officer (PRO) identified in the solicitation document. Id., § 1.5550(c)(1).
• “The protest must be physically received by the PRO at the location specified. A postmark or other carrier mark prior to the due date and time is not sufficient to show physical receipt.” Id., § 1.5550(c)(2).
• “In regard to the solicitation notice or solicitation document including specifications, a protest must be received within 14 days after the date the solicitation was posted to the Bulletin and must be received by the PRO at the designated address before the date for opening bids, proposals or responses.” Id., § 1.5550(c)(2)(A).
• “In regard to rejection of individual bids, proposals or responses or awards, the protest must be received by close of business no later than 14 days after the protesting party knows or should have known of the facts giving rise to the protest to ensure consideration, and, in any event, must be received before execution of the applicable contract.” Id., § 1.5550(c)(2)(B).
• “The PRO, for good cause shown, or when he or she determines that a protest raises issues significant to the procurement system, may consider an untimely protest. Good cause may include, but is not limited to, instances in which the procurement file is not available in a timely manner to interested parties or when a FOIA request has not been responded to by a State agency in full or in part.” Id., § 1.5550(c)(2)(C).

Link to What Must a Protest Contain? What Must a Protest Contain?

• No formal briefs or other technical forms of pleading or motion are required. Protest submissions should be concise and logically arranged, and they should clearly state legally sufficient grounds of protest.
• The written protest shall include as a minimum the following:

• The name and address of the protesting party;
  • Identification of the procurement, and, if a contract has been awarded, its number or other identifier;
  • A statement of reasons for the protest specifically identifying any alleged violation of a procurement statute, a procurement rule or the solicitation itself, including the evaluation and award (conclusions with supporting facts and arguments may not be sufficient);
  • Supporting exhibits, evidence, or documents to substantiate any claims unless not available within the filing time, in which case the expected availability date shall be indicated.

Id., § 1.5550(c)(5).

Link to What Happens After the Protest is Filed? What Happens After the Protest is Filed?

• The state agency must supply a response to the protest within the time period set forth by the PRO. Id., § 1.5550(d). If a state agency fails to comply with this request, the PRO may consider the protest on the basis of available information or may recommend to the CPO-GS that the relief requested in the protest be granted. Id.
• The protester must supply any additional information requested by the PRO within the time periods set in the request. Id. If the protesting party fails to comply with this request, the PRO shall consider the protest on the basis of available information or may deny the protest. Id.
• The PRO may request that an interested party supply additional information within the time period set in the request. Id. An “interested party” means an actual or prospective bidder, offeror or respondent whose direct economic interest would be affected by the award of a contract or by the failure to award a contract. Id.

Link to Is There a Stay While the Protest is Pending? Is There a Stay While the Protest is Pending?

• Unless the CPO-GS determines the needs of the state require an immediate execution of a contract, the following rules apply:

• When a protest has been timely filed and before an award has been made, the procuring officer shall make no award of the contract until the protest has been resolved. Id., § 1.5550(e).
  • If timely received but after award, the award shall be stayed without penalty to the state. Id.

Link to Who Reviews Protest Filings? Who Reviews Protest Filings?

• The CPO-GS appoints one or more PROs to consider the procurement-related protests and to make a recommendation to the CPO-GS for resolution of the protest. Id., § 1.5550(b).
• The PRO will make a recommendation to the CPO-GS as expeditiously as possible after receiving all relevant, requested information. Id., § 1.5550(f).
• In determining the appropriate recommendation, the PRO shall consider the seriousness of the procurement deficiency, the degree of prejudice to other parties or to the integrity of the competitive procurement system, the good faith of the parties, the urgency of the procurement, and the impact of the recommendation on the state agency’s mission. The recommendation may include, but is not limited to:

• Affirming the state agency’s initial decision, in whole or part;
  • Directing the state agency to issue a new solicitation;
  • Directing the state agency to award a contract consistent with the statute and rule; or
  • Directing such other action as is necessary to promote compliance with the statute or rule. Id.
• The CPO-GS may adopt the recommendation of the PRO or take other action. Id.
• The CPO-GS will resolve the protest with a written determination. Id.
• “If an action concerning the protest has commenced in a court or administrative body, the CPO-GS may defer resolution of the protest pending the judicial or administrative determination.” Id., § 1.5550(g).

Link to What Are the Appeal Procedures? What Are the Appeal Procedures?

• There are no formal administrative appeals processes provided. The CPO’s determinations are considered “final and conclusive unless they are clearly erroneous, arbitrary, capricious, or contrary to law.” 30 ILCS 500/20-70. 
• Review of a CPO’s bid protest decision following exhaustion of the administrative process is available through circuit court review. (See Chester Bross Construction Co. v. Dep’t of Transpo., 2014 IL App (4th) 130164, ¶ 23, 8 N.E.3d 527).

Link to Wait, I Have More Questions! Wait, I Have More Questions!

• If you have any questions about bid protests in Illinois — or about state-level bid protests generally — please do not hesitate to contact Aron Beezley or Nathaniel Greeson.