Public procurement in Missouri is conducted according to statutes and the rules published by the Division of Purchasing and Materials Management within the Missouri Office of Administration. See Chapter 34, Revised Statutes of Missouri; Missouri Code of State Regulations, Title 1, Division 40, Chapter 1—Procurement [pdf]. Although many protesters opt to bring their protest actions directly in court, there are voluntary procedures for the submission and resolution of bid protests involving purchases by Missouri state government agencies in 1 Mo. CSR 40-1.050(9).
How and when to file a bid protest
A protest challenging the award of a Missouri contract may be submitted in writing to the Director of the Division of Purchasing and Materials Management (“DPMM”) or to another person designated to receive the protests. The protest should include:
- the name, address, and phone number of the protester;
- signature of the protester or the protester’s representative;
- the solicitation number;
- a detailed statement describing the grounds for the protest; and
- supporting exhibits, evidence, or documents.
A timely protest of a contract award must be received by the director of the DPMM or the designee within ten business days after the date of the contract award. If the tenth day falls on a weekend or a state holiday, the deadline extends to the next business day.
There is no published regulation establishing a procedure for the resolution of pre-award protests in Missouri. If they cannot be resolved informally before the submission of bids, a challenge to the specifications, contract provisions, or other solicitation provisions would have to be addressed in a court proceeding.
How is a Missouri bid protest resolved?
A timely and complete bid protest will be reviewed and decided by the director of the DPMM or the designee. An incomplete protest or one that does not establish that the protester has standing to challenge the award will be summarily denied. A decision addressing the merits of the protest will contain findings of fact and an analysis of the issues presented in the protest. The decision will sustain or deny the protest. If the protest is sustained, available remedies include canceling the award.
An adverse decision on a bid protest may be challenged in court through a Writ of Mandamus, a declaratory judgment action, or other judicial means. Mo. Ann. Stat. § 536.150.
Recognize that the administrative procedure set out in the regulations is not mandatory and deciding not to use it does not bar a court action. A court action is generally filed in the Cole County Missouri Circuit Court. Challengers (particularly incumbent vendors who do not receive the new contract) often want injunctive relief to prevent a transition of the contract, and the administrative bid protest procedure does not stay the transition. Accordingly, it is common for unsuccessful bidders to go directly to court.
Can a successful protestor recover attorney’s fees?
Section 536.087 of the Missouri Code provides for the award of reasonable attorney’s fees to parties that prevail in agency proceedings or civil actions. Fees are not available if the court or the agency finds that “the position of the state was substantially justified or that special circumstances make an award unjust.” That is a high burden, and the statute also imposes caps on the size of the fee applicant and on the hourly rate. For these reasons, fee awards are not common.