Bradley has been publishing an ongoing survey of state-level bid protest processes and procedures. For the next state in this series, we focus on the protest process in Utah.
What Rules Apply?
Protests of state-level agency procurements in Utah are generally governed by Utah Code Ann. §§ 63G-6a-1602-03 and Utah Admin. Code R33-16.
For protests involving counties, or local or municipal procurements, there is not a uniform administrative protest process, and aggrieved parties will most likely need to seek a temporary restraining order and/or a preliminary injunction in court (see, e.g., Cal Wadsworth Constr. v. City of St. George, 898 P.2d 1372 (Utah 1995)).
Who Can File a Protest?
To initiate a protest, a party must meet two criteria:
- Standing – The protester must be a party with a legitimate interest in the procurement (e.g., a bidder or potential bidder).
- Aggrievement – The party must be adversely affected by either the procurement process or the award of the contract.
Strict Deadlines Apply
Protests in Utah are subject to firm deadlines, and missing them can result in a loss of all protest rights. Specifically:
- For bidding processes, the protest must be filed before bid opening.
- For standard procurement methods, the protest must be filed before the submission deadline.
- In multi-stage procurements, the protest must be filed before the close of the relevant procurement stage.
There is a narrow exception: If the protester did not and could not have known the grounds for the protest earlier, they must file within seven days of acquiring actual or constructive knowledge. However, once these deadlines pass, they generally cannot be extended or modified.
Protest Content Requirements
A valid protest must include:
- The protester’s mailing and email addresses.
- A concise, factual statement outlining:
- How the protester was aggrieved.
- The legal or procedural grounds for the protest.
- Evidence supporting both the protest and the protester’s standing.
Acceptable grounds for a protest include:
- Violations of procurement laws or rules.
- The procurement unit’s failure to follow the solicitation.
- Errors in evaluation or scoring.
- Undue bias (excluding preferences based on proposal quality).
- Improperly restrictive or anticompetitive specifications.
Conversely, protests generally will not be considered if they are:
- Based on missing a mandatory pre-bid meeting.
- Vague or speculative.
- Complaints about not receiving individualized notice of a solicitation that was publicly posted.
What Cannot Be Requested in a Protest?
Protestors generally may not request:
- Explanations of scoring rationale.
- Disclosure of protected or confidential records beyond statutory requirements.
- Additional documents or information not expressly permitted.
The Protest Review Process
Once a protest is filed, the protest officer will first determine:
- Timeliness, and
- Compliance with all content requirements.
If the protest is late or incomplete, it will likely be dismissed without a hearing.
If it meets all requirements, the protest officer may:
- Dismiss it without a hearing if the facts do not support the claim.
- Uphold it without a hearing if the facts clearly justify doing so.
- Hold a hearing if there are unresolved factual or legal questions.
The protest officer may allow an interested party to intervene and participate in the protest process. An intervening party is typically the presumptive awardee.
During a hearing, the officer may subpoena witnesses and documents and gather additional testimony. Hearings are recorded, but formal rules of evidence do not apply.
The Decision and Appeal Process
A written decision is issued unless the parties reach a settlement. This decision should:
- State the reasoning.
- Notify the protester of any appeal rights.
- Include information on any required security deposit or bond.
The decision is final and binding unless appealed under the appropriate section (depending on the type of procurement unit involved). If no decision is issued within 30 days, the protester may proceed to an appeal as though the protest was denied. The appellate process requires a timely and complete administrative protest, so a party that misses a protest deadline or procedural requirement will not have a right to appeal the procurement decision.
Final Takeaway
Filing a procurement protest is a technical and deadline-driven process. Entities considering a protest must act quickly, gather documentation early, and ensure their claims are well-grounded in law and fact. Working with legal counsel experienced in government procurement can mean the difference between a dismissed protest and a successful challenge. If you are considering a protest or need guidance on government contracting issues, please feel free to contact Aron Beezley or Nathaniel Greeson.