Current through Register Vol. 48, No. 12, March 22, 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-bid/proposal meeting and any decision to reject a late bid or proposal.
2) Any person who has submitted a
bid or proposal may protest a decision to reject the person's bid or proposal
or to award to another person.
b) Protest Review Officer
The CPO-HE may appoint one or more Protest Review Officers
(PRO) to consider the procurement-related protests and make a recommendation to
the CPO-HE for resolution of the protest. The CPO-HE 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 e-mail
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 or proposals.
B) In regard to rejection of individual bids
or proposals 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 it
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 Freedom of Information Act request has not been
responded to by a university 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, the fax cover sheet 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 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. If the
protest is by fax or e-mail, the protesting party may be required to submit
documentation by mail or carrier within 2 days after the request; 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 university must supply a response and
any additional information requested by the PRO within the time periods set in
the request. If a university fails to comply with this request, the PRO may
consider the protest on the basis of available information or may recommend to
the CPO-HE 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
recommend to the CPO-HE that the relief requested in the protest be
denied.
3) The PRO may request 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 or offeror 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-HE 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, no award of the contract shall be made 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
After considering the evidence presented, the PRO shall
submit a proposed written resolution of the protest to the CPO-HE. The CPO-HE
will resolve the protest by means of a written determination, as expeditiously
as possible after receiving all relevant 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
university's mission. The recommendation may include, but is not limited
to:
1) affirming the university's
initial decision, in whole or in part;
2) directing the university to issue a new
solicitation;
3) directing the
university 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-HE may defer resolution of the protest pending
the judicial or administrative determination.