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PSU School of Business AdministrationISQA 440, Governmental ProcurementSpring 2012

Presented ByDarin Matthews, CPPO, C.P.M.Director of Business OperationsNorth Clackamas Schools

PROCUREMENT PROTESTS & DISPUTES

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What is a Protest?

• Complaint or objection made to a governing body by an interested “party” regarding a procurement decision

• Formal declaration of disapproval by a concerned “party”, including statement of resolution sought

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What Can We Do?

• Know what our rules allow• Tools we can use

– De-briefing– Pre-bid conferences– Vendor education

• Make a choice – “React or Respond!”

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2 Kinds of Protests

• Protest of solicitation specifications or contract provisions [ORS 279B.405; OAR 137-047-0730;]

• Protest of contractor selection [ORS 279B.410; OAR 137-047-0740;]

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The Psychology of Protests

• Protest Procedures– Agency rules may require their inclusion in

solicitation.– Provides a road map for vendor protests?– Results in more specification protests?

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The Psychology of Protests

• Protest Procedures– As part of solicitation, protest procedures are

clearly stated and lessen confusion– No secret as to how to protest– Other terms, conditions, rules and instructions

are included, why not protests?

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The Psychology of Protests

• Protest Handling– Buyers must know their protest rules– First line of protest should be the buyer– Respond after conferring with manager– Response should come from agent with

designated authority

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The Psychology of Protests

• Protest Handling– Vendors can appeal to the manager– Vendors feel vindicated– Hopefully protest will not go further

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The Psychology of Protests

• Meeting Face to Face– Consider sitting down with protesting vendor– Often this will ward off further action– Vendors feel they had proper access– Vendors can speak their piece (venting)

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The Psychology of Protests

• Meeting Face to Face– Allows vendor representatives to bring in

their “higher ups”– Vendors “save face” by coming in– Vendors may feel they have secured an

advantage for the next bid

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The Psychology of Protests

• Dealing With Elected Officials– Your agency may require protests and

appeals to be resolved by board/commission, or review panel

– Do prep work up front, advise board– Provide summary data, not copious detail

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The Psychology of Protests

• Dealing With Elected Officials– Gain allies and support before hearing– Don’t go in “cold” to meeting or hearing– Don’t let your board be surprised or “blind-

sided” by a protesting vendor– Be prepared to present your side

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Why Allow Protests?

• Public needs a process to question procurement activity• Provides checks and balances• Proves that the process is fair• Demonstrates integrity of the procurement process• Administrative process is less costly and less time-

consuming (Saves time and money!)

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“Protests to resolve honest, bona fide grievances are reasonable. Citizens should have a right of redress for any government activity.”

David Gragan, President National Association of State Procurement Officials

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What are some of the problems with protests?

• Expensive• Delays project• Creates strained vendor/agency relations

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Protest of Solicitation Specifications

Model Procurement Code = 14 days to protest.

Oregon Administrative Rule = 10 days prior to bid closing unless stated otherwise in the solicitation. [OAR 137-047-0730(2),

Washington Policy C-002 = within 5 days of verbal notification.

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Protest of Contract AwardOregon

• A bidder/proposer may protest an award or intent to award if:– They are adversely affected; and– The reason for the protest is:

• All lower bids or higher ranked proposals are non-responsive;

• Agency did not follow evaluation criteria;• Agency abused discretion in rejecting

bids/proposals; or• Agency’s evaluation of bids/proposals or resultant

award is in violation of ORS 279A.

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Protest of Contractor Selection, Contract Award

OAR 137-247-0740

If a protest is filed within a timely manner (7 days) by an aggrieved bidder/proposer, the agency must respond to the protest in writing before issuance of

the purchase order or contract.

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Right to ProtestSolicitation

• Any actual, or prospective bidder in connection with a solicitation may protest. [ORS 279B.405(2)]

• Any actual, or prospective bidder, offeror, or vendor that may be aggrieved in connection with the procurement may file a protest.

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Right to Protest Award

• A bidder or proposer may protest the award if they are adversely affected. (ORS 279B.410; OAR 137-047-0740).

• Oregon Administrative Rules say the protest must be filed in seven (7) days.

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Protest of Contractor Selection, Contract Award

137-047-0740 Protest of Award (Oregon)

If a protest is filed within a timely manner (7 days) by an aggrieved bidder/proposer, the agency must respond to the protest in writing before issuance of the purchase order or contract.

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Protest of Contractor Selection; Contract Award

• MPC Article 9, Section 101(1); aggrieved bidder or

offeror may protest to the agency within 14 days after they know or should have known the factual issues thereto.

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Why Do Vendors Protest?

• Distrust the process• Nothing to lose

• No consequences• To maintain competitive edge

• Cause a re-bid• To get another chance

• Gain information for next bid

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Many jurisdictions report that 90% of the objections come to naught.

That is, the purchasing decision is vindicated; the award stands.

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Classes of Protest

• Ventilation protest• Gripe protest • Misunderstanding protest• Anticipatory protest

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Form of Protest

• Protests must:– Be in writing – Directed to the appropriate CPO– Submitted timely– A statement of reasons– Relief sought– With enough detail to substantiate claims

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Protest of Solicitation Specifications - Oregon

• Identification of request for change or protest. Envelopes containing requests for change or protests of solicitation specifications or contract provisions shall be marked as follows:–Solicitation Specification (or Contract Provision)

Request for Change (or protest)–Solicitation Document Number (or other identification)

REMEMBER! ALWAYS GET THE PROTEST IN WRITING

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WAC 236-48-141Form and Substance

• Purchasing Activity shall make available to bidders upon request, a copy of their protest policy

• All protests and appeals must be in writing, signed by the protestant

• A copy of the protest must go to the bidder against whom the protest is filed

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Protest of specifications serve as a check and balance

&may save a bid which could be

deemed non-compliant.

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Debriefing

Debriefing may be an effective means of eliminating many protests.

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PROCESS OF DEBRIEFING

• Informal: May be an offer for debriefing in solicitation or pre-bid conference.

• Formal: Stated in solicitation as part of the process. Formal notice is given to each proposer stating their scheduled debriefing.

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Benefits of Debriefing

• Identify ways to improve the process• Encourages better bids in the future• Provides industry feedback to user

departments• Establishes a reputation of being fair and

open

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Drawbacks for Debriefing

• Takes time• Bidders/offerors think it is a time to

complain/vent• Can possibly increase risk to agency

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When to Debrief

• When the solicitation and solution are complex

• When you receive no bids/proposals• When you anticipate challenges• If any political repercussions may occur

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Who to Debrief

• Unsuccessful suppliers• The successful supplier• User group (customer)• Special interest groups• The political players who may be

contacted

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Points to Remember

• Conduct the debriefing promptly• In the debrief suppliers should only

discuss their offers• Limit the time and attendance for each

debriefing. Afford time between debriefings

• Include Chair of evaluation team