Bid Protests in Alabama
Bradley has been publishing an ongoing survey of state-level bid protest processes and procedures (see, e.g., our post on “Bid Protests in New York”). For the next state in this ongoing series, we focus on the bid protest procedures in the State of Alabama.
Who May Protest and When?
a. Administrative Protests – Division of Purchasing
The Alabama Administrative Code provides that the “Division of Purchasing shall provide a notice of intent to award of all contracts let by competitive bid by electronic posting to the Division of Purchasing website,” and that “[a]ny bidder adversely affected by an intent to award a contract let by competitive bid shall file with the Director of Purchasing a notice of protest within five (5) calendar days after the notice of intent to award is electronically posted” (Ala. Admin. Code § 355-4-1-.04(14)). The notice of protest – which may be filed by mail, by hand delivery, by email or by facsimile – must be filed with the Director of Purchasing by 5 p.m. CDT on the fifth calendar day after the notice of intent to award is electronically posted.
A formal written protest shall then “be filed within seven (7) days, excluding Saturday, Sunday, and State holidays, after the notice of protest is filed.” The formal written protest may be filed by email in PDF format or by mail or hand delivery, and must be filed with the Director of Purchasing by 5 p.m. CDT on the seventh day after filing the notice of protest. The bidder or its legal representative must sign the formal written protest “or it will not be accepted.” Failure to file either the notice of protest or the formal written protest within the time limits prescribed herein “shall constitute a waiver of any protest of the award of contract.”
b. Requests for Proposals – Goods and Services
Currently, for certain Requests for Proposals or procurements for goods or services issued by agencies directly (as opposed to through the Division of Purchasing or Department of Finance), the only form of bid protest is a suit for injunctive relief under Ala. Code Sections 41-16-31 & 61. Both sections provide that “[a]ny taxpayer of the area within the jurisdiction of the awarding authority and any bona fide unsuccessful bidder on a particular contract shall be empowered to bring a civil action in the appropriate court to enjoin execution of any contract entered into in violation of the provisions of” the applicable procurement law. There is no set time limit for filing an action under these code sections.
c. Requests for Proposals – Public Works Projects
Similarly, for public works projects under Title 39 of the Alabama Code, “[t]he Attorney General, a bona fide unsuccessful or disqualified bidder, or any interested citizen may maintain an action to enjoin the letting or execution of any public works contract in violation of or contrary to the provisions of [Title 39] or any other statute and may enjoin payment of any public funds under any such contract” (Ala. Code § 39-5-4). Such an action must be commenced within 45 days of contract award.
What Must a Protest Contain?
The Alabama Administrative Code simply provides that “[t]he formal written protest shall state with particularity the facts and law upon which the protest is based” (Ala. Admin. Code § 355-4-1-.04(14)). Accordingly, most bid protests in Alabama take the form of a letter that sets forth in detail both the relevant facts and law.
For suits for injunctive relief, the protester must file pleadings with the court stating a basis for relief grounded in improper application of law or improper influence.
When Will a Decision on the Protest Be Issued?
Within 30 calendar days of receipt of the timely filed, formal written protest, the Director of Purchasing shall issue a written decision with respect to the protest (Ala. Admin. Code § 355-4-1-.04(14)).
For suits for injunctive relief, there is no set time for a decision to be issued.
Are There Any “Appeal” Procedures?
The Alabama Administrative Code states that, “[s]hould the decision by the Director of Purchasing be adverse to the bidder, the bidder may seek relief in accordance with section 41-16-31 of the Code of Alabama” (Ala. Admin. Code § 355-4-1-.04(14)).
For suits for injunctive relief, the protester may appeal to a court of appropriate jurisdiction, such as the Alabama Supreme Court or Civil Court of Appeals for Alabama.
Of note, Alabama’s Competitive Bid Law is repealed as of October 1, 2022, and will be replaced as set forth in 2021 Alabama Laws Act 2021-296. Alabama Code Section 41–4–161 provides a revised statutory protest process for certain procurements. We will provide an update on these new procedures in a forthcoming blog post.