The Colorado Procurement Code grants the right to submit a protest to “[a]ny actual or prospective bidder, offeror, or contractor who is aggrieved in connection with the solicitation or award of a contract.” Colo. Rev. Stat. § 24-109-102(1).
A protest must be submitted in writing within seven working days after the protester knew or should have known of the grounds for the protest, usually directly after the contract award decision by the agency issuing the solicitation or bid request. The protest must be submitted to the head of the agency or his designee, who is usually the purchasing agent for the agency.
The purchasing agent for the agency may settle and resolve protests concerning the solicitation and contract award. Absent a settlement, a written decision is required within seven working days after the protest is filed. This decision is to be based on and limited to the issues raised in the protest. It must explain each of the factors taken into account in reaching the determination and must advise the protester of its appeal rights. Colo. Rev. Stat. § 24-109-107. The protest decision must be mailed or otherwise furnished immediately to the protester and is final and conclusive unless the protester files a timely appeal or initiates a court proceeding to challenge the decision.
Two options are available for a party seeking to appeal an unfavorable initial protest decision. An appeal may be filed with the Executive Director of the Colorado Department of Personnel and Administration. This agency encompasses Colorado’s State Purchasing Office. Appeals are usually determined by this agency’s designee, the State Purchasing Director.
It is also possible to appeal an initial protest decision through a court action in the District Court for the City and County of Denver, which hears most legal challenges to Colorado state agency decisions. Colo. Rev. Stat. § 24-109-101(c).
An appeal of the initial protest decision must be filed within ten working days of the date the agency’s purchasing agent’s decision is mailed. Colo. Rev. Stat. § 24-109-203. The State Purchasing Director is statutorily directed to make a decision within 30 working days after receiving an appeal of the initial protest decision. Colo. Rev. Stat. § 24-109-204.
Any legal action on a protest must be filed within 10 working days after receiving the initial protest determination by the agency’s purchasing agent or the State Purchasing Director’s appeal decision. Colo. Rev. Stat. § 24-109-206(1)(a).
Automatic stay of contract award
Unlike federal bid protests and the procedures followed in many other states, the automatic stay of the contract award pending the result of a solicitation or bid protest is extremely limited in Colorado. The primary provision providing for an across- the-board stay while all protests and appeals were pending was repealed in the early 1980s. Under current law, an automatic stay of the award of a contract is available only while the initial protest is pending. Colo. Rev. Stat. § 24-103-203. Any further stay of a contract award by either the State Purchasing Director or the Denver District Court is, according to the State Attorney General’s Office, not authorized under the Colorado Procurement Code.
When a protest is sustained by the agency’s purchasing agent, full relief may be accorded to the protester, including an order requiring the agency to conduct a new procurement.
The availability of relief is much more limited in a protest that is sustained on appeal. If the contract has already been awarded and the party awarded the contract has not acted fraudulently or in bad faith, the contract still may be ratified or affirmed as being awarded to this party if it is determined to be in the best interests of the state. Alternatively, the contract may be terminated, in which case the party awarded the contract shall be compensated for the actual expenses reasonably incurred under the contract prior to termination, plus a reasonable profit. Colo. Rev. Stat. § 24-109-403(1). Even when a protest is upheld on appeal, the protesting party is entitled only to the reasonable costs incurred in connection with the solicitation or bid, including solicitation or bid preparation costs. Under this statutory provision, reasonable costs do not include attorney fees. Colo. Rev. Stat. § 24-109-104.