Michigan

Key Agency(ies):  

• The Department of Technology, Management, and Budget (DTMB) holds primary authority for all discretionary decisions regarding solicitation, award, amendment, cancellation, and appeal of state contracts.
• For all transportation projects, the Department of Transportation (MDOT) is responsible for contracts to construct or repair roads/bridges, with its own competitive bidding requirements.

Key Statute:

• The Management and Budget Act 1984 (Act 431), specifically:
  • Michigan Compiled Laws § 18.1261 et seq. for DTMB authority and procedures
  • Michigan Compiled Laws § 18.1241 et seq. for construction contracts bidding procedures
  • Michigan Compiled Laws § 18.661c et seq. for MDOT competitive bidding
    • Link to Michigan Compiled Laws

Key Regulations:

• Michigan Administrative Code for DTMB-specific procurement regulations
• DTMB policies and guides on the DTMB website
• Link to DTMB policies website

Procurement Types/Highlights:

• Requests for Proposals (RFPs)
• Sealed Bids
• Cooperative Purchasing
• Small Procurements

Bid Protests:

Regs Governing Bid Protests:

• Management and Budget Act of 1984, PA 431, Mich. Comp. Laws § 18.1261(2)

Eligible Protesters:

• Only parties with contractual rights in the process may protest.
• Michigan courts have repeatedly held that unsuccessful bidders do not have standing to challenge the award or bidding process solely based on disappointment in the result.

Timeliness Rules:

• Protests must be received by the date and time identified in the notice of recommendation issued in the Buy4Michigan portal.

Protest Process:

• The protest must set forth the facts of the alleged error in the procurement process, the ITB or RFP number, and the protester’s desired remedy.
• All relevant information should be included in the initial submission, as the Chief Procurement Officer is not required to consider information submitted after the protest deadline.
• Upon receiving the protest, the Chief Procurement Officer will either issue a written decision or schedule an informal meeting to gather additional information.
• The decision of the Chief Procurement Officer is final.
• Under most circumstances, the contract award will be delayed pending the Chief Procurement Officer’s decision. However, if the delay would impact public health or safety, or jeopardize state property, the Chief Procurement Officer may proceed with the contract award.

Appeals:

• Protesters may appeal an adverse decision by the Chief Procurement Officer to Michigan’s district courts, pursuant to Michigan Constitution art. 6, § 28.
• Appeals from trial court decisions involving bid protests follow normal civil appellate practice.
• Remedies available in court include injunctions, but damages or lost profits are not permitted.

Claims: 

• Michigan does not prescribe a specific statutory or regulatory process for contractor claims.
• Claims and contract disputes are generally governed by the terms of the contract and applicable administrative law.

Suspension & Debarment:

• If a vendor or contractor does not perform responsibly, or if an owner or officer holding 25% or more of the firm has “demonstrated a lack of integrity that could jeopardize the state’s interest,” the DTMB may debar the vendor/contractor from participating in the bid process and from contract award.

Interesting/Distinctions: 

• Michigan provides that “all other things being equal, preference shall be given to products manufactured or services offered … by facilities with respect to which the operate is designated as a clean corporate citizen…” Mich. Comp. Laws 18.1261(1). A “clean corporate citizen” is a “facility that has demonstrated environmental stewardship and a strong environmental ethic.” Mich. Comp. Laws § 324.1401(e). To qualify for the clean corporate citizenship (C3) program, an operator must have a “strong and effective environmental management system,” implement a robust pollution prevention policy and program, and demonstrate consistent compliance with all applicable state and federal environmental requirements and have no outstanding unresolved violations.
• Michigan also incorporates a reciprocal preference to Michigan businesses against an out-of-state business for purchases over $100,000 consistent with federal law, meaning that “a Michigan bidder is preferred in the same manner in which an out-of-state bidder would be preferred in its home state.” Mich. Comp. Laws 18.1268. A bidder must certify its status as a Michigan business to claim this preference. False certification is a felony.
  • Michigan state law also has preferences for disabled veteran contractors, businesses owned by individuals with disabilities, and environmental/recycled materials.