Protests & AppealsJuly 16, 2014

Kent D. BeersChief Procurement Officer

NoticeSome sections of the Utah Procurement Code quoted in this presentation are paraphrased due to space restrictions. It is strongly recommended that participants read the entire Procurement Code and review its contents with their attorney.

Protests

Best Defense Against Protests1. Follow The Law

Study the Procurement Code

2. Follow The RFPDon’t do anything not in the RFP

3. Attend Trainingwww.purchasing.utah.gov

State Purchasing Newsletter

1. Advise Vendors with Concerns/Complaints of Their Right to Protest in Writing – Utah Code 63G-6a Part 16

2. Always Involve Your Attorney

3. Don’t Delay Award because Someone “Might” Protest. Law requires a procurement to be stopped only when protest/appeal is filed (Unless otherwise advised by legal counsel)

4. Protect the Rights of All Parties (protestor, Vendor Awarded, etc.)

5. Send Protest to the Evaluation Committee for a Response

6. The Protest Process Beneficial – Helps Identify Weaknesses and Flaws in the Procurement Process

Utah Code 63G-6a-1602Protest – Time for filing – Authority to resolve protest

(1) (a) A protest may be filed with the protest officer by: (i) an actual or prospective bidder or offeror who is aggrieved in connection with a procurement; or (ii) a prospective contractor who is aggrieved in connection

with an award of a contract.

Utah Code 63G-6a-1602(b)(i) A protest relating to an invitation for bids or a request for

proposals shall be filed:

     (A) before the opening of bids or the closing date for proposals; or

(B) if the person filing the protest did not know and should not have known of the facts giving rise to the protest before the bid opening or the closing date for proposals, within seven days after the day on which the person knows or should have known of the facts giving rise to the protest.           

Division of Purchasing Policy Regarding Debriefings

The Utah Procurement Code and Administrative Rule do not require debriefing. The Division of State Purchasing does not conduct face to face or teleconference debriefings. Any debriefing is at the option of the State and will be conducted in writing.

1. A request for a debriefing, including all questions, must be submitted in writing to the Division of State Purchasing within seven (7) calendar days of the award notification, rejection letter, disqualification letter, email notification, or posting on the Division’s website or electronic bid notification provider. 2. The response from the Division of Purchasing will be in writing and will be based on the justification statement and, if applicable, the cost-benefit analysis prepared by the evaluation committee and conducting procurement unit, the issued solicitation documents, and applicable statutes and administrative rules.

Division of Purchasing Policy Regarding Debriefings

3. The response from the Division of Purchasing will not compare differences between vendor submissions or evaluations of other proposals, bids, or other comparisons. 4. The Division of Purchasing will not speculate as to why members of the evaluation committee scored subjective criteria the way they did. 5. State agencies, as conducting procurement units, shall not respond to requests for debriefings. Any requests made to the conducting procurement unit for a debriefing shall be forwarded to State Purchasing as the issuing procurement unit.

Utah Code 63G-6a-1602(2) A person who files a protest under this section shall include in the filing document:

(a) the person's address and email address; and

(b) a concise statement of the grounds upon which the protest is made.

Utah Code 63G-6a-1602(3) A person who fails to file a protest within the time prescribed may not: (a) protest to the protest officer a solicitation or award of a contract; or

(b) file an action or appeal challenging a solicitation or award of a contract before an appeals panel, a court, or any other forum.

(4) . . . a protest officer or the head of a procurement unit may enter into a settlement agreement to resolve a protest.

Utah Code 63G-6a-1603 Protest officer responsibilities and authority – Proceedings on protest – Effect of decision

(1) After a protest is filed, the protest officer shall determine whether the protest is timely filed and complies fully with the requirements of Section 63G-6a-1602.

(2) If the protest officer determines that the protest is not timely filed or that the protest does not fully comply with Section 63G-6a-1602, the protest officer shall dismiss the protest.

            

Utah Code 63G-6a-1603(3) If the protest officer determines that the protest is timely filed and complies with Section 63G-6a-1602, the protest officer shall:

(a) dismiss the protest if the protest officer determines that the protest alleges facts that, if true, do not provide an adequate basis for the protest;

(b) uphold the protest without holding a hearing if the protest officer determines that the undisputed facts of the protest indicate that the protest should be upheld; or

(c) hold a hearing on the protest if there is a genuine issue of material fact that needs to be resolved in order to determine whether the protest should be upheld.          

Utah Code 63G-6a-1603(4) (a) If a hearing is held on a protest, the protest officer may: (i) subpoena witnesses/compel attendance at protest hearing;

(ii) subpoena documents for production at the protest hearing;

(iii) obtain additional factual information; and

(iv) obtain testimony from experts, person filing the protest, representatives of the procurement unit, or others to assist the protest officer to make a decision on the protest.

(b) The Rules of Evidence do not apply to a protest hearing.

Utah Code 63G-6a-1603(d) A protest officer shall:(i) record each hearing held on a protest;

(ii) whether a hearing is held or not, preserve all records/evidence relied upon in reaching the protest officer's written decision until the decision/appeal of decision becomes final; and

(iii) submit to the procurement policy board chair a copy of the protest officer's written decision/records/evidence relied upon in reaching the decision, within 7 days after receiving:

(A) notice that an appeal; or (B) a request from the chair of the policy board.

Note: A Court reporter may be recommended by legal counsel

Utah Code 63G-6a-1603(5)(a)Deliberations of a protest officer may be held in private.

(b) If the protest officer is a public body, as defined in Section 52-4-103, the protest officer shall comply with Section 52-4-205 in closing a meeting for its deliberations.

Example of Public Body: School Board Council

        

Utah Code 63G-6a-1603(6)(a) A protest officer, shall promptly issue a written decision regarding any protest. . .

(b) The decision shall:(i) state the reasons for the action taken;

(ii) inform the protestor of the right to judicial or administrative review as provided in this chapter; and

(iii) indicate the amount of the security deposit or bond required under Section 63G-6a-1703.

(c) A person who issues a decision shall mail, email, or otherwise immediately furnish a copy of the decision to the protestor. Note – legal counsel may advise that the decision go to all parties – i.e. the person that won the award being protested.

Utah Code 63G-6a-1603(7) A decision described in this section is effective until stayed or reversed on appeal, except to the extent provided in Section 63G-6a-1903.

(9) If the protest officer does not issue the written decision within 30 calendar days. . . the protester, prospective contractor, or contractor may proceed as if an adverse decision had been received.

(10) A determination under this section by the protest officer regarding an issue of fact may not be overturned on appeal unless the decision is arbitrary and capricious or clearly erroneous.

Notice of Decision Template

Notice of Decision

Matter Of: Firm XXXX vs. Name of Procurement Unit

File: Solicitation # and Name

Date:

Parties: List all parties: Protestor, Procurement Unit, Firm(s) Awarded the Contract

Issued By: Name of Protest Officer 

Decision:The protest filed by Firm XXXX is (denied or upheld) based on (lack of merit / merit).

Finding of Facts: Include background – grounds for protest stated in Protest Letter.

Firm XXXX was disqualified from participation in Solicitation #RS1234 – Name of Solicitation, on June 24, 2014 for failure to. . .

Firm XXXX filed a protest with respect to Solicitation RS1234 on June 30, 2014 based on the following grounds:

1. The RFP contained ambiguous and arbitrary provisions relating to the submission of. . .

2. The Division should waive Firm XXXX’s late submission based on. . .

Issue #1 Use the RFP, Code, Rules, Question/Answer, etc. to either deny or uphold grounds for the protest related to issue #1 The State denies Firm XXXX’s argument that the RFP contained ambiguous and arbitrary provisions. . . The requirements for. . . are clearly spelled out in the Request For Proposal (RFP) issued on June 12, 2014 quoted below.   

RFP Requirements Reprinted

Issue #1  

During the “Question and Answer” phase of the RFP process, the question as to whether the State would consider. . . was clearly address as noted below:      Questions and Answers Reprinted

Question #4. . . Answer #4. . . Question #7. . .Answer #7. . .

Issue #1  

The requirement to. . . was also clearly spelled out in Attachment “B” of the RFP quoted below:   

      

Attachment B Reprinted

Issue #1  

Lastly, Utah Code 63G-6a-709 and Administrative Rule 33-7-702 states:   

         

Utah Code 63G-6a-709 Reprinted

Administrative Rule R33-7-702 Reprinted

Issue #2 , Issue #3, Issue #4. . . Use the RFP, Code, Rules, Question/Answer, etc. to either deny or uphold grounds for the protest related to each issue. . .

Value of Contract: $9,122,000 List the total value of contract excluding any renewal periods. Security Deposit/Bond required to file an appeal: $320,000 List amount of Security Deposit or Bond based on Table in Utah Code 63G-6a-1703.

Documents reviewed in rendering this decision:List all of the documents (Record) used by Protest Officer to reach decision – note that the statute specifies that the grounds for a protest are limited to the issues raised in the protest letter.

1. Solicitation RFP JM14012, including Attachments

2. BidSync Q & A Record, Notification and View Record

3. Utah State Procurement Code 63G-6a-709

4. Administrative Rule R33-7-702

5. Protest filed by Firm XXXX, including Exhibits

6. Response to Bid Protest by the Utah Department of. . .

7. Activity Summary showing total contract use over past 5-years

8. Register of Firms attending “Mandatory Site Meeting”

Right to Appeal Notify parties of their right to appeal and requirement to post a security deposit or bond.

Utah Code 63G-6a-1702 Reprinted Appeal to Utah State Procurement Policy Board

Utah Code 63G-6a-1703 ReprintedRequirement to pay a security deposit or post a bond

Signature of Protest Officer

Print Name of Protest Officer

Name of Procurement Unit

Appeals

A person filing the appeal must submit security deposit or bond based on the Total Contract Value (TCV). $20,000 TCV under $500,000;

$25,000 TCV $500,000 to $1,000,000;

$50,000 TCV $1,000,000 to $2,000,000;

$95,000 TCV $2,000,000 to $4,000,000;

$180,000 TCV $4,000,000 to $8,000,000;

$320,000 TCV $8,000,000 to $16,000,000;

$600,000 TCV $16,000,000 to $32,000,000;

$1,100,000 TCV $32,000,000 to $64,000,000;

$1,900,000 TCV $64,000,000 to $128,000,000;

$3,500,000 TCV $128,000,000 to $256,000,000;

$6,400,000 TCV $256,000,000 to $512,000,000;

$10,200,000 TCV $512,000,000 or more

Utah Code 63G-6a-1702(10)

If a procurement appeals panel determines that the decision of the protest officer is arbitrary and capricious or clearly erroneous, the procurement appeals panel: (a) shall remand the matter to the protest officer, to cure

the problem or render a new decision;

(b) may recommend action that the protest officer should take; and

Utah Code 63G-6a-1702(10)

If a procurement appeals panel determines that the decision of the protest officer is arbitrary and capricious or clearly erroneous, the procurement appeals panel:

(c) may not order that: (i) a contract be awarded to a certain person;

(ii) a contract or solicitation be cancelled; or (iii) any other action be taken other than the action

described in Subsection (10)(a).

Utah Code 63G-6a-1702(3) A person may not base an appeal of a protest under this section on a ground not specified in the person's protest under Section 63G-6a-1602.

Utah Code 63G-6a-1903 (Effect of timely protest or appeal)A procurement unit. . . may not proceed further with a solicitation or with the award of a contract:(1) during the pendency of a timely:

(a) protest under Subsection 63G-6a-1602(1);

(b) appeal of a protest under Section 63G-6a-1702; or

(c) appeal of a procurement appeals panel decision under Section 63G-6a-1802; and

Utah Code 63G-6a-1903 (Effect of timely protest or appeal)A procurement unit. . . may not proceed further with a solicitation or with the award of a contract until:(a) all administrative and judicial remedies are exhausted;

(b) for a protest under Section 63G-6a-1602 or an appeal under Section 63G-6a-1702 or an appeal under Section 63G-6a-1802:

(i) the chief procurement officer [or head of a P.U.], after consultation with the attorney general's office [PU’s attorney] and the head of the using agency, makes a written determination that award of the contract without delay is in the best interest of the procurement unit or the state;

State of Utah“Best Value”

Regional Contracts

State Purchasing Policy – Regional ContractsThrough the use of regional solicitations for state cooperative contracts, prospective vendors will have the opportunity to compete for contracts at the regional level. Effective July 1, 2014, all State “Best Value” Cooperative Contracts, being solicited will be reviewed and considered for suitability for regional solicitations.

(i) Bid by Region - vendors may bid on one region or multiple regions.

(ii) Bid Entire State - if each region is not covered under alternative (i), this contract will be bid out for statewide coverage.

(iii) Vendors responding to a regional solicitation must offer similar warranties and obligations as those contained in other State “Best Value” Cooperative Contracts.