Current through Register Vol. 45, No. 52, December 27, 2023
(a) An initial protest to the Bureau of
Contracts must be in writing and must contain specifically enumerated factual
and/or legal allegations, setting forth the basis on which the protesting party
challenges the contract award by the public contracting entity.
(b) Time to file a protest.
1. An interested party must file an initial
protest with the Bureau of Contracts within ten business days of receiving
notice of the contract award which it seeks to challenge or, if a debriefing
has been requested by the interested party, within five business days of the
debriefing, whichever is later.
2.
If the interested party is not provided notice of the contract award, the
interested party may file a protest with the Bureau of Contracts at any time
after the contract award and prior to the Comptroller's final action on the
contract.
3. In the case of a
protest related to a procurement that resulted in contract awards to multiple
successful bidders, the interested party must file such protest with the Bureau
of Contracts prior to the Comptroller's final action on any contract award
related to that procurement.
(c) Service and delivery.
1. The protesting party must simultaneously
deliver a copy of the protest to the public contracting entity and the
successful bidder, and shall provide evidence of such delivery, either by
showing that an electronic copy has been provided, or by attaching to the
protest an affirmation in writing as to such delivery. If the protesting party
does not know the identity of the successful bidder, the protesting party shall
so state in its protest and the public contracting entity shall provide the
successful bidder with a copy of the protest.
2. In the case of a protest related to a
procurement that resulted in contract awards to multiple successful bidders,
the Bureau of Contracts shall determine whether any of the successful bidders
would be affected by the outcome of the protest and, thus, whether any of the
successful bidders should be provided with a copy of the protest and an
opportunity to respond.
(d) Answers to the protest.
1. The public contracting entity may file an
answer to the protest with the Bureau of Contracts simultaneously with the
delivery of the contract to the Bureau of Contracts for its review, or within
seven business days of the filing of the protest, whichever is later. The
public contracting entity's answer should address all factual and legal
allegations contained in the protest. A copy of the public contracting entity's
answer shall be simultaneously delivered to the protesting party and the
successful bidder, and the public contracting entity shall provide evidence of
such delivery, either by showing that an electronic copy has been provided, or
by attaching to the answer an affirmation in writing as to such
delivery.
2. If there are multiple
successful bidders, the public contracting entity shall deliver a copy of its
answer to the successful bidders at the direction of the Bureau of
Contracts.
3. The successful bidder
may file an answer to the protest with the Bureau of Contracts no later than
the date that the public contracting entity is required to file its answer. If
the successful bidder chooses to file an answer, it must simultaneously deliver
a copy of such answer to the public contracting entity and the protesting
party, and provide evidence of such delivery, either by showing that an
electronic copy has been provided, or by attaching to the answer an affirmation
in writing as to such delivery.
(e) Protesting Party's Reply.
1. The protesting party may, but is not
required to, file a reply to the answer of the public contracting entity and
the successful bidder. Such reply shall be filed with the Bureau of Contracts
no later than three business days after the date that the public contracting
entity's answer is filed.
2. A copy
of such reply shall be simultaneously delivered to the public contracting
entity and the successful bidder and the protesting party shall provide
evidence of such delivery, either by showing that an electronic copy has been
provided, or by attaching to the reply an affirmation in writing as to such
delivery.
3. If there are multiple
successful bidders, the protesting party shall deliver a copy of its reply to
the successful bidders at the direction of the Bureau of Contracts.
(f) The protesting party's reply,
if submitted, shall constitute the final submission permitted as of right under
this section. The Bureau of Contracts is not required to consider any
additional filings or any materials submitted beyond those filings specifically
set forth in this section in rendering its determination of the
protest.
(g) Upon its own
initiative, or upon request of any participant in the protest process, the
Bureau of Contracts may in its sole discretion act on an expedited basis, in
which case the Bureau of Contracts will advise all participants in writing of
filing deadlines.
(h) The Bureau of
Contracts may summarily deny a protest that fails to contain specifically
enumerated factual or legal allegations that set forth the basis on which the
protesting party challenges the contract award, or where the protest raises
only issues of law that have previously been decided by the courts or by the
Bureau of Contracts.
(i) The Bureau
of Contracts may, in its sole discretion and for good cause shown, waive any
deadline set forth in this section.
(j) Where appropriate, the Bureau of
Contracts may require the public contracting entity, the protesting party, the
successful bidder, or any other interested party, to address additional issues
identified by the Bureau of Contracts and submit further information regarding
the procurement.
(k) Nothing herein
shall preclude the Bureau of Contracts from obtaining information relevant to
the procurement from any outside source, as it deems appropriate. Reliance on
outside source information, if any, will be identified by the Bureau of
Contracts in its written determination.
(l) The Bureau of Contracts shall issue a
written determination, contemporaneously with its final action on the contract,
addressing the issues raised by the protest. The determination shall make
findings of fact and conclusions of law. The Bureau of Contracts shall provide
a copy of the determination to all participants in the protest and the
successful bidder. The determination shall be made part of the procurement
record.
Adopted
New
York State Register January 25, 2017/Volume XXXIX, Issue 04, eff.
1/25/2017
