Protests: Resolution NIGP-Utah presentation Tuesday, January 19, 2010 R. Bryan Hemsley, Chief Procurement Officer Salt Lake City Corporation

Protests: are they increasing? “In these rough economic seas, more and more vendors are turning to the government market to stay afloat. It’s not hard to understand why: The most recent spending statistics show that the government is virtually recession proof.” (Government Procurement, May 20, 2008, By Michael Keating)

Changing times Then (20 years ago): contracts were typically 1-year duration Now: contract and extension options typically up to 5-years

“In the past, companies were wary of protests because they didn’t want to hurt their customer relationships…But government has moved to longer and larger procurements…With large contracts shutting off the marketplace for a decade companies can’t risk losing…If you don’t get selected…you won’t get awards downstream.” (FederalTimes.com, April 6, 2009, By Elise Castelli)

Basic Conflict Resolution Remain calm and manage stress Control behavior and emotions Provide opportunity to be heard Listen and pay attention to feelings expressed Be aware of and respectful of differences

Basic Conflict Resolution Mistakes to avoid: Being defensive Generalizing Being right Play the blame game Make character attacks Stonewalling

Types of Protests Challenge to specification Challenge to award selection Small Purchase Protest RFP vs. Bid – is there a difference on protests?

What about Sour Grapes?

Terminology Did know or should have known Didn’t know or couldn’t have known Timeliness Dismissed Without merit - Denied Has merit - Upheld

Considerations Agency Interest Public Interest Business Interest Fairness Mistakes in the process Errors in the specifications Continuation of business opportunities

Protest Resolution Process Saber Rattling: Refer potential protesters to Code and Rules, Don’t interpret, let them review on their own, conclude and respond accordingly. Review agency code, rules, policy and procedure. Notify and consult with Attorney’s Office through the process.

Protest Resolution Process Initial evaluation Is the protester a valid participant Was the protest filed timely Does the protest include the required information to support the protest Are there comments or concerns that are unsupported?

Protest Resolution Process Supported protest claims or allegations Fact finding and investigation Unique claims addressed individually Detailed analysis of claims

Protest Resolution Process Determination and protest decision (resolution) - Possible Outcomes Dismissal was not a participant has no interest in outcome not viable for award Without Merit – Protest Denied Untimely submission Continue with specification or selected award

Protest Resolution Process Determination and protest decision (resolution) - Possible Outcomes Has Merit – Protest Upheld Back-up and re-evaluate situation Provide for correction or new selection Continue with specification or selected award – special determination Cancel & Re-Bid

Protest Resolution Process Appeals Process Lawsuit in Court

Other Tips Avoid “Flaming” Letters – Don’t pour gasoline on the fire Timely Determination Develop protest resolution strategies (Include Project Management Elements) Attorney Recommendation – Keep it simple, Simplify response at lowest level possible

Other Tips Law firms that specialize in bid protest preparation & filing Bid Protest Weekly – publication 2006 3-part article series in Government Procurement, author Jack Zeigler Cost of resolving a protest – may depend on your code or policy

R. Bryan Hemsley, Chief Procurement Officer Salt Lake City Corporation Protests: Resolution Questions? R. Bryan Hemsley, Chief Procurement Officer Salt Lake City Corporation