1. Managing the Protest Process
Presented by:
Michael Greene, C.P.M., CPPO
Procurement Administrator
City of Tempe

2. Overview of Presentation
Purpose and benefits of the protest process
What can be protested
How to file a protest
Responding to protests
Appeal process
Resolution options
How to minimize protests
Initial steps to responding to protests

3. Protest Averages Per NIGP Benchmark Survey:
Average number of protests per Year Per Procurement Officer?
Percent of protests that are ruled in favor of agency?

4. Protest Averages Per NIGP Benchmark Survey:
Average number of protests per Year Per Procurement Officer: 0.3
Percent of protests that are ruled in favor of agency: 93%

5. Purpose and Benefits of Protest Process
Ensures transparency of public spending
Allows a formal process for companies to challenge a procurement decision
Allows oversight of the procurement process that benefits:
Competition
Trust and fairness
Strengthens the importance of following established codes, laws, and RFP protocols
Establishes the foundation for a strong and compliant program

6. How to File a Protest
Outlined in code, statute, rules, ordinance or policy
Any interested party may protest a solicitation, proposed award or award
“Interested party” – any actual or prospective bidder to a solicitation. (sub-contractors or material suppliers are not considered an “interested party.”)

7. How to File a Protest Content of the Protest:
Name, address and telephone number of the protester
The signature of the protester or the protester’s representative
Identification of the solicitation or contract number
A detailed statement of the legal and factual grounds of the protest including copies of the relevant documents
Form of relief requested

8. How to File a Protest Timeline for filing protests:
Protests based upon alleged improprieties in a solicitation that are apparent before the due date shall be filed before bid opening.
Protests of awards or planned awards - typically is 10 days after some key event: Council date of award, after the procurement file is made available, after a supplier knows or should have known…
If the protester shows “good cause” and it is in the interests of the organization, the entity may consider any protest that is not filed timely.

9. Procurement Representative’s Response
Once a protest has been received, notices shall be sent to all interested parties.
A decision will be made to either “stay” the award or proposed award based on the protest’s merits.
The designated person will evaluate the protest and formally respond in writing within so many days (typically 14 days) from the date of protest receipt.

10. Procurement Representative’s Response
The response time limit may be extended by the agency for good cause for a reasonable time (30 days typically).
If the representative sustains the protest, the agency shall implement an appropriate remedy.

11. Procurement Representative’s Response
Remedies:
Decline to exercise an option to renew a contract
Terminate the contract
Reissue the solicitation
Issue a new solicitation
Award a contract consistent with the procurement statues and regulations
Such other relief as determined necessary to ensure compliance with this Article

12. Protest Appeal Process
An appeal from a decision made by the representative shall be filed within a defined number of days from date of decision (10 days is typical).
Appellant must show the precise factual or legal error in the decision of the representative from which an appeal is taken.
Representative shall give notice of appeal to awarded firm, governing body, and interested parties .

13. Protest Appeal Process
If a stay is entered into as part of the original protest, the representative shall determine if the stay should be continued.
Representative shall file an agency report (a compilation of all documents related to the protest and appeal) within a defined time-frame from date of appeal.

14. Selection of Hearing Officer
Depending on your agency a hearing officer may be selected by mutual agreement of both parties or a designated official or panel may hear the case.
Hearings on appeals of bid protest decisions shall be conducted in accordance with the rules established by the agency.
Either party may pursue judicial review as a final step.

15. Protest Appeal Process
Determine who pays costs of hearing
Some public agencies pay the costs up front and then if the agency prevails the company is required to reimburse for any and all hearing costs.
Some rules may require a split of expenses between the parties or the public agency may be the final payer no matter the outcome.

16. What Procurement Officers Can Do to Minimize Protests
Research the industry
Ensure terms and conditions are fair and relevant to the specific procurement
Develop specifications that allow for reasonable competition – avoid proprietary or limiting specifications
Establish evaluation criteria that are clear, relevant and weighted appropriately
Be careful with mandatory minimums – use preferred

17. What Procurement Officers Can Do to Minimize Protests
Ensure there are no conflicts of interest with committee members and that they have the knowledge and skills to evaluate offers.
Conduct pre-solicitation conferences – LISTEN!
Thoroughly review all issues raised by suppliers with the agency’s customers and committee members and follow up with timely addendums.
Take a strong leadership role in the evaluation process (read the offers).

18. What Procurement Officers can do to Minimize Protests
Stay refreshed on the contents of the solicitation and addendums throughout the potentially long evaluation process.
Be sure to fully execute requirements published in the solicitation.
When using RFP’s - take advantage of the interview and discussion phase to further inform and discover the pros and cons of the offered solution.
Provide timely notice to unsuccessful companies and allow time for debriefs – LISTEN!

19. What Suppliers can do to Minimize Protests
Carefully read the full solicitation – understand the evaluation criteria.
Attend pre-solicitation conferences, if offered.
Be sure to send clarifications to Procurement Officer before deadline for submittals.
Seek clarifications and use the Q&A process to make sure the solicitation requirements are clear.
Submit all required information in the format requested.
Acknowledge addendums and sign your offer.

20. What Suppliers can do to Minimize Protests
Recognize when a protest is legitimate versus a disagreement with decision of agency on whether the “best” offer was accepted.
Request a debrief at the conclusion of the evaluation process to understand the agency’s rationale for award.
If possible, resist protesting until you have reviewed the contract file and understand the agency’s reasons for award.

21. Helpful Hints When Responding to a Protest
Initial Steps:
Take a deep breath and try not to take the action personally
Ensure there is evidence of receipt on the protest document
Confirm if the protest has been filed timely
Review the protest to ensure it meets the requirements of a legitimate protest and that you understand the issues
Inform your procurement team as well as your supervisor on the receipt of protest
Determine status of procurement – is it awarded? is the contractor performing? etc.

22. Helpful Hints When Responding to a Protest
Initial Steps:
Make contact with your legal representative and share a copy
Review the specific code or rule language that governs how protests are handled and refresh yourself on the steps
Follow through with notifications of the protest to interested parties
Determine if there is merit to the protest
Make decision on whether the award (if already made) should be stayed and publish decision to interested parties
Share copy of the protest with your awarded supplier

23. Helpful Hints When Responding to a Protest
Getting started on your written response:
Fully review the protest document to ensure your understanding of the issues and concerns – (read factually)
Carefully review the published solicitation and any addendums that were issued
Review the evaluation documentation
Review the winning proposal and the proposal from the protestant

24. Helpful Hints When Responding to a Protest
Getting started on your written response:
Determine if there is an opportunity to informally resolve the protest.
Write draft of response in an orderly fashion that follows along with each issue raised by the protestant (write factually and objectively).
Work closely with your legal representative on the response
Cite appropriate references to code or rules that support your actions.
Be willing to acknowledge points where protestant is correct.

25. Thank you for Attending Any Questions?