Current through Register Vol. 48, No. 38, September 20, 2024
a)
Procurement-Related Protests Allowed
1) Any
person may submit a protest related to the notice of the procurement, the
solicitation document, any pre-submission conference, and any decision to
reject a late bid, proposal or response.
2) Any person who has submitted a bid,
proposal or response may protest a decision to reject that person's bid,
proposal, or response or the decision to award to another bidder, offeror or
respondent.
b) Protest
Review Officer
The CPO-GS may appoint one or more Protest Review Officers
(PRO) to consider the procurement-related protests and make a recommendation to
the CPO-GS for resolution of the protest. The CPO-GS may adopt the
recommendation or take other action.
c) Submission of Protest
1) A protesting party must submit a protest
in writing to the PRO identified in the solicitation document. Fax and email
qualify as writing, but the PRO does not guarantee receipt using those
means.
2) The protest must be
physically received by the PRO at the location specified. A postmark or other
carrier mark prior to the due date and time is not sufficient to show physical
receipt.
A) In regard to the solicitation
notice or solicitation document including specifications, a protest must be
received within 14 days after the date the solicitation was posted to the
Bulletin and must be received by the PRO at the designated address before the
date for opening bids, proposals or responses.
B) In regard to rejection of individual bids,
proposals or responses or awards, the protest must be received by close of
business no later than 14 days after the protesting party knows or should have
known of the facts giving rise to the protest to ensure consideration, and, in
any event, must be received before execution of the applicable
contract.
C) The PRO, for good
cause shown, or when he or she determines that a protest raises issues
significant to the procurement system, may consider an untimely protest. Good
cause may include, but is not limited to, instances in which the procurement
file is not available in a timely manner to interested parties or when a FOIA
request has not been responded to by a State agency in full or in
part.
3) Any notice
posted to the Bulletin establishes the "known or should have known" date for
the subject matter of the notice.
4) Protests must be clearly marked on the
delivery container or the e-mail subject line.
5) No formal briefs or other technical forms
of pleading or motion are required. Protest submissions should be concise and
logically arranged, and should clearly state legally sufficient grounds of
protest. The written protest shall include as a minimum the following:
A) the name and address of the protesting
party;
B) identification of the
procurement, and, if a contract has been awarded, its number or other
identifier;
C) a statement of
reasons for the protest specifically identifying any alleged violation of a
procurement statute, a procurement rule or the solicitation itself, including
the evaluation and award (conclusions with supporting facts and arguments may
not be sufficient);
D) supporting
exhibits, evidence, or documents to substantiate any claims unless not
available within the filing time, in which case the expected availability date
shall be indicated. If submitting the protest by fax, supporting documentation
over 20 pages in length may not be included without authorization;
and
E) specific relief
sought.
6) The
protesting party shall clearly identify any information in the protest that is
confidential, proprietary or a trade secret.
d) Requested Information
1) The State agency must supply a response to
the protest within the time period set forth by the PRO. If a State agency
fails to comply with this request, the PRO may consider the protest on the
basis of available information or may recommend to the CPO-GS that the relief
requested in the protest be granted.
2) The protesting party must supply any
additional information requested by the PRO within the time periods set in the
request. If the protesting party fails to comply with this request, the PRO
shall consider the protest on the basis of available information or may deny
the protest.
3) The PRO may request
that an interested party supply additional information within the time period
set in the request. For purposes of a protest, an "interested party" means an
actual or prospective bidder, offeror or respondent whose direct economic
interest would be affected by the award of a contract or by the failure to
award a contract.
e)
Stay of Procurements During Protest
Unless the CPO-GS determines the needs of the State require
an immediate execution of a contract, the following apply:
1) When a protest has been timely filed and
before an award has been made, the SPO shall make no award of the contract
until the protest has been resolved.
2) If timely received but after award, the
award shall be stayed without penalty to the State.
f) Resolution
The CPO-GS will resolve the protest by means of a written
determination. The PRO will make a recommendation to the CPO-GS as
expeditiously as possible after receiving all relevant, requested information.
In determining the appropriate recommendation, the PRO shall consider the
seriousness of the procurement deficiency, the degree of prejudice to other
parties or to the integrity of the competitive procurement system, the good
faith of the parties, the urgency of the procurement, and the impact of the
recommendation on the State agency's mission. The recommendation may include,
but is not limited to:
1) Affirming
the State agency's initial decision, in whole or part;
2) Directing the State agency to issue a new
solicitation;
3) Directing the
State agency to award a contract consistent with statute and rule; or
4) Directing such other action as is
necessary to promote compliance with statute or rule.
g) Effect of Judicial Proceedings
If an action concerning the protest has commenced in a court
or administrative body, the CPO-GS may defer resolution of the protest pending
the judicial or administrative determination.
