Not an "expected" protest. EMD Caterpillar filed an
appeal March 17 with the Illinois Procurement Policy Review Board and the Cook County, Ill., Chancery Court.
Well, to be picky, the signatures on the Master Agreement are dated from March 8 to March 13, so if the EMD protest appeal was filed on March 17, the agreement was ahead of the "expected" appeal.
The formal appeal, which I am sure both sides expected, occurs after the award of the contract. Until a contract is executed, there is no actionable harm as a basis for remedial action.
EMD originally asked IDOT for reconsideration prior to the final award. That a procedural step. I don't think they expected a favorable outcome from IDOT. After all, IDOT made the original determination. If they reversed on reconsideration, then they would have been saying they were wrong in the first place, and no government agency likes doing that.
Now that IDOT has awarded the contract and issued a notice to proceed, EMD has grounds to go to the state procurement board (which oversees all state contracts) and to the courts to argue that the bid analysis and award violated the terms of the procurement documents. Assuming EMD wants to pursue this down the line, they can ask for an injunction to halt work while the courts hear the arguments.
I've read the EMD argument and the procurement specification, and on the surface I think EMD has a persuasive case. The procurement specification required the use of a specific methodology for determining the HP required to meet the specified performance, including the parameters to be used in that methodology (weight, drag area, etc.). This was worded as a firm requirement and did not include "or approved equal" or similar wording that would permit use of another method. Using that methodology, EMD determined the required HP and designed the locomotive accordingly.
Siemens used a different methodology than the one in the spec and bid a lower HP locomotive. By accepting the EMD bid as compliant, IDOT accepted Siemens use of that alternate methodology. EMD is arguing that, when the required methodology is applied to the Siemens locomotive, it does not meet spec. They argue that IDOT, by accepting the Siemens methodology in the bid analysis, effectively changed the terms of the procurement specification after the fact: that had EMD been permitted to use the same methodology, they could have submitted a lower HP locomotive at a lower price, but were not afforded that opportunity. It's an uneven playing field argument.
Back before I became a burden on society (retired), one of my areas was preparation of procurement specifications and technical review of bids. A fundamental requirement of bid and procurement is that all bidders must be afforded the same opportunity to bid. To allow one bidder to change a requirement in the specification without notifying and permitting all bidders to make the same change is just the sort of thing that gets contracts tossed out by the courts. This is especially true with public sector bidding.
Unless there are some weasel words buried somewhere in the spec that I did not see (possible), or unless EMD was afforded an opportunity to rebid (maybe), the EMD appeal will be interesting to follow.
