1. Protests: Resolution NIGP-Utah presentation Tuesday, January 19, 2010
R. Bryan Hemsley, Chief Procurement Officer Salt Lake City Corporation

2. Protests: are they increasing?
“In these rough economic seas, more and more vendors are turning to the government market to stay afloat. It’s not hard to understand why: The most recent spending statistics show that the government is virtually recession proof.” (Government Procurement, May 20, 2008, By Michael Keating)

3. Changing times
Then (20 years ago): contracts were typically 1-year duration
Now: contract and extension options typically up to 5-years

4. “In the past, companies were wary of protests because they didn’t want to hurt their customer relationships…But government has moved to longer and larger procurements…With large contracts shutting off the marketplace for a decade companies can’t risk losing…If you don’t get selected…you won’t get awards downstream.” (FederalTimes.com, April 6, 2009, By Elise Castelli)

5. Basic Conflict Resolution
Remain calm and manage stress
Control behavior and emotions
Provide opportunity to be heard
Listen and pay attention to feelings expressed
Be aware of and respectful of differences

6. Basic Conflict Resolution
Mistakes to avoid:
Being defensive
Generalizing
Being right
Play the blame game
Make character attacks
Stonewalling

7. Types of Protests Challenge to specification
Challenge to award selection
Small Purchase Protest
RFP vs. Bid – is there a difference on protests?

8. What about Sour Grapes?

9. Terminology Did know or should have known
Didn’t know or couldn’t have known
Timeliness
Dismissed
Without merit - Denied
Has merit - Upheld

10. Considerations Agency Interest Public Interest Business Interest
Fairness
Mistakes in the process
Errors in the specifications
Continuation of business opportunities

11. Protest Resolution Process
Saber Rattling: Refer potential protesters to Code and Rules, Don’t interpret, let them review on their own, conclude and respond accordingly.
Review agency code, rules, policy and procedure. Notify and consult with Attorney’s Office through the process.

12. Protest Resolution Process
Initial evaluation
Is the protester a valid participant
Was the protest filed timely
Does the protest include the required information to support the protest
Are there comments or concerns that are unsupported?

13. Protest Resolution Process
Supported protest claims or allegations
Fact finding and investigation
Unique claims addressed individually
Detailed analysis of claims

14. Protest Resolution Process
Determination and protest decision (resolution) - Possible Outcomes
Dismissal
was not a participant
has no interest in outcome
not viable for award
Without Merit – Protest Denied
Untimely submission
Continue with specification or selected award

15. Protest Resolution Process
Determination and protest decision (resolution) - Possible Outcomes
Has Merit – Protest Upheld
Back-up and re-evaluate situation
Provide for correction or new selection
Continue with specification or selected award – special determination
Cancel & Re-Bid

16. Protest Resolution Process
Appeals Process
Lawsuit in Court

17. Other Tips Avoid “Flaming” Letters – Don’t pour gasoline on the fire
Timely Determination
Develop protest resolution strategies (Include Project Management Elements)
Attorney Recommendation – Keep it simple, Simplify response at lowest level possible

18. Other Tips
Law firms that specialize in bid protest preparation & filing
Bid Protest Weekly – publication
part article series in Government Procurement, author Jack Zeigler
Cost of resolving a protest – may depend on your code or policy

19. R. Bryan Hemsley, Chief Procurement Officer Salt Lake City Corporation
Protests: Resolution
Questions?
R. Bryan Hemsley, Chief Procurement Officer Salt Lake City Corporation