Jim Parker, CPSM, C.P.M.

Avoiding Protests  Define: What is a Protest? ○ Legal right of suppliers when dealing in the public sector ○ Essentially provides a formal review of the process of selection and award ○ Chief Procurement Officer has oversight ○ Appeals? ○ Court? - Normally “arbitrary and capricious” must be proven if all other aspects of process and award are valid

Avoiding Protests Are Protests Always Avoidable? NO!

Avoiding Protests And….Sometimes the actual protest is the easy part…. Media Legislature Governor Auditors Boss, etc.

Avoiding Protests Are protests generally more common with Bids or RFP‘s? Are protests more common with construction projects? At what part of the process are protests most common - Before or after award? Are protests always valid?

Avoiding Protests Do suppliers always protest when they have reason? Why or why not?  Avoid to preserve relationship  Avoid to ensure opportunity  Can be extremely time consuming  Creates hard feelings with competition  Costs to protestor if unsuccessful (including attorney fees on both sides)

Avoiding Protests Protesting is a “right” of aggrieved suppliers - we shouldn’t encourage or discourage suppliers to protest However… Not all protests are valid:  Timely response - at the point where the grievance arises (not always after the award)  Timely review after award - “knew or should have known”  Frivolous  Reasons for protest are not stated  SOP (Standard Operating Procedure to protest all non- awards)

Avoiding Protests When protestor fails to follow statute with regard to protests, the Utah Procurement Code prohibits review to protect the interests of the state.

Avoiding Protests Things to do:  Prior to issuing - pay attention to details in each Bid/RFP  Avoid errors and omissions  Best to have at least one other individual review the documents prior to release, in the case of RFP’s many should review  Equal treatment of all suppliers - hear their concerns  Avoid personal bias (stay objective)  Protect the process - Non-disclosure and single contact during process - require all questions/responses in writing

Avoiding Protests  Make changes to bids/RFP’s through addenda  If large mistakes are uncovered it may be best to restart the process  Fair and thorough evaluations/scoring - stick to the criteria!  Reserve right to reject all bids/Proposals  Reasonable criteria/specifications - generic and unbiased  Ensure good weighting of criteria

Avoiding Protests  Realistic timeframe for questions / addenda / final response  Complete, clear and unbiased specs  Always double check dates/times/locations  Gauge the experience of the requestor  Use standard documents and T’s & C’s  Include language that allows for waiving informalities and technicalities

Avoiding Protests  Include language that includes the right of the governmental entity to be the sole judge in determination of outcome, including in “or equal” decisions  Obtain Conflict of Interest/Non-disclosure statements for RFP committee members  Limit use of “Must”, “Mandatory”, “Will”, “Required”, “Only”, etc.  Plan for protests - have a protest process in place

Avoiding Protests  Committees/Staff: ensure they are trained and understand the process. Selection committees should have a role in drafting the RFP and should be in place before issuance.  Careful reviews of committee decisions/scoring should take place prior to award.  In extremely complex bids/RFP’s it may be good to engage the services of a consultant in the area - (insurance/financial/development/ etc.)

Avoiding Protests What are the reasons why we should try to avoid protests?  Delay of purchase/project  Creates additional issues for the initial awardee  Can be costly  Draws unwelcome attention to you  Draws unwelcome attention to your department  Draws unwelcome attention to your institution/agency, etc.  Credibility of operation may come into question  Re-bidding/Re-issuance of RFP may be required

Avoiding Protests Other suggestions:  How they’re handled is often as important as the issues involved  Purchasing must be seen as unbiased/neutral  Openness/transparency is important  Review everything - get a complete understanding of both sides  Seek clarification  Keep the process formal and documented  Involve all parties - legal/dept. admin./ etc.  Know laws/policies  Ensure internal unity  Avoid unnecessary delays but do homework first  The records must stand alone