and
Nancy Brooks
Director of Purchasing
Iowa State University
Annual Meeting
April 7 - 10, 2013
Orlando, Florida
1

Overview
– A violation of policy, procedure or law; or
– A decision that lacks any rational basis
Annual Meeting
April 7 - 10, 2013
Orlando, Florida
2

Overview
– A decision or action that lacks logical support at all
– A decision based on materially mistaken or erroneous facts
– A decision contrary to the solicitation
– A decision based on improper motives
Annual Meeting
April 7 - 10, 2013
Orlando, Florida
3

Common Protestable Issues
• Failure to advertise the solicitation as required;
• Specifications give one bidder an unfair advantage over its competitors;
• A bidder had improper communications or relationship with contracting officer which gave the appearance of impropriety;
• Winning bidder failed to satisfy minimum qualifications or was not responsible or responsive;
Annual Meeting
April 7 - 10, 2013
Orlando, Florida
4

Common Protestable Issues
• Evaluation criteria were applied that were different from those stated in solicitation;
• More weight was afforded to one evaluation area than was disclosed in solicitation;
• Irregularities in receipt or opening of bids
(acceptance of late bid or opening at different times)
Annual Meeting
April 7 - 10, 2013
Orlando, Florida
5

Common Protestable Issues
• Source selection not rational or consistent with the evaluation criteria;
• Past performance evaluations may appear unfair or not supported by facts;
• Improper discussions or debriefings; or
• Conflict of interest created by awardee’s involvement in certain activities.
Annual Meeting
April 7 - 10, 2013
Orlando, Florida
6

Common Protestable Issues
• Sole source contracts;
• Best-value determinations; or
• Abuse of discretion and disparate treatment of bidders.
Annual Meeting
April 7 - 10, 2013
Orlando, Florida
7

Bid Protest Trends
• Federal procurement protest increased
– 1,652 in 2008 to 2,475 in 2012
• Why?
– Difficult economy
– Shrinking pots of public money
– Law firms specializing in bid protests
“Leading name in bid protests – team of attorneys have been nationally recognized for their work in pre-award and post-award protests.”
Annual Meeting
April 7 - 10, 2013
Orlando, Florida
8

Protests
• Court Cases
– Blue Cross & Blue Shield of Rhode Island v. Najarian,
(Rhode Island Supreme Court, 2005)
• Trial Court sustained a protest against the award & issued an injunction
• Supreme Court reversed
– While the contract award was not handled perfectly (at least partly due to understaffing), a “fair and open bid process was conducted in good faith and we must afford a presumption of correctness to the State’s decision. Any mistakes made during the process simply do not rise to the level of palpable abuse of discretion.”
Annual Meeting
April 7 - 10, 2013
Orlando, Florida
9

Protests
• Court Cases
– Glidepath, LLC v. Columbus Regional Airport Authority,
(Ohio Court of Appeals, 2012)
• Evaluation committee determined Glidepath was not responsible. Airport’s finance director on committee and analyzed financial statements & D&B reports. Company had late payments to subs and limited project mgmt. experience.
• “Airport performed its duties in a lawful manner. Made qualitative determinations regarding Glidepath’s resources, capacity, and overall ability to perform…..determination was supported by logic and reason.”
Annual Meeting
April 7 - 10, 2013
Orlando, Florida
10

Protests
• Court Case:
– Professional Building Maintenance Corp. v. School Board of County of Spotsylvania (Virginia Supreme Court, 2012)
• County held 2 post-award meetings with vendor
• (1st) emphasized weakness in Environmentally Preferable
Purchasing Program and (2 nd ) gave reasons regarding responsibility, transitioning plan, and method of conducting background checks.
• Found that award decision was arbitrary and capricious.
Annual Meeting
April 7 - 10, 2013
Orlando, Florida
11

Protests
• Court Case:
– A&A Industrial Piping, Inc. v. County of Passaic (New
Jersey Supreme Court, 2012)
• Protested award to low bidder on grounds that apparent awardee was not prequalified by county. County realized it inadvertently omitted prequalification in solicitation so cancelled it.
• Court sustained the county’s decision that it did not abuse its discretion in determining it needed to rebid. Court reasoned that this put potential bidders on an equal footing .
Annual Meeting
April 7 - 10, 2013
Orlando, Florida
12

Protests
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Annual Meeting
April 7 - 10, 2013
Orlando, Florida
13

HOW TO AVOID BID PROTESTS
Annual Meeting
April 7 - 10, 2013
Orlando, Florida
14

EXAMPLES OF PROTESTS
• Emergency Generator & Transfer Switches awarded to low compliant bidders (in-state)
– Protest: From low non-compliant bidder (out-of-state)
– Based on: Price
No local preference clause in bid
Failure to notify all bidders with bid tab within 7 days per state statute (?)
Annual Meeting
April 7 - 10, 2013
Orlando, Florida
15

Examples of Protests
• Disposable Gloves for Dining Services awarded to low bidder (local WBE)
– Protest: From bidder with higher price (out-of-state)
– Based on: Awardee’s bid was materially non-responsive by failing to answer all questions listed in
Section D or including mandatory electronic copy in their proposal.
Annual Meeting
April 7 - 10, 2013
Orlando, Florida
16

Examples of Protests
• Vending Machine Energy Control Units awarded to low compliant bidder
– Protest: From bidder with higher price
– Based on: “Violation of NAEP Code of Ethics Rules #7 –
Use only by consent original ideas & designs devised by one vendor for competitive purchasing purposes”
“Request a 3 rd party review of protest – Rule #8 – be willing to submit any major controversies to arbitration or other 3 rd party review insofar as established policies of institution permit.”
Annual Meeting
April 7 - 10, 2013
Orlando, Florida
17

Examples of Protests
• Version Control Software awarded to low compliant bidder with best solution
– Protest: From other bidder
– Based on:
1.
Challenged the evaluation process and criteria
2.
Bid process be reopened and allow them to engage more in decision making process
3.
Keep request confidential
Annual Meeting
April 7 - 10, 2013
Orlando, Florida
18

Examples of Protests
• Tent Rental and Event Set-Up Contract awarded to second low bidder based upon reference checks indicating poor communications and damage to grounds
– Protest: From low bidder (local company)
– Based on: Low bid and lack of evidence that company could not perform.
Annual Meeting
April 7 - 10, 2013
Orlando, Florida
19

Protest Avoidance Strategies
• Published policy and procedure for vendor disputes
• Develop RFP to remove the appearance of an arbitrary or proprietary process
• Post RFPs on Internet
• Communicate your decision with all respondents prior to final award (debriefing)
Annual Meeting
April 7 - 10, 2013
Orlando, Florida
20

Protest Avoidance Strategies
• Keep communication lines open
• Always respond to questions/protests in diplomatic manner.
• Keep conversations factual and objection
• Be consistent with evaluation criteria stated in RFP
Annual Meeting
April 7 - 10, 2013
Orlando, Florida
21

Protest Avoidance Strategies
• Understand your position and institution’s will to support your decision
• Be consistent and follow your policies & procedures
• MAKE SURE YOU CAN DEFEND YOUR EVALUATION
& AWARD DECISION
Annual Meeting
April 7 - 10, 2013
Orlando, Florida
22

Protests
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Annual Meeting
April 7 - 10, 2013
Orlando, Florida
23

Annual Meeting
April 7 - 10, 2013
Orlando, Florida
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