Bid Protests : A Best Practice Approach Presented by: Steve Ballew, C.P.M., CPPO NAEP Annual Meeting Denver 2010

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Bid Protest Defined Some definitions: 1. Written objection or an appeal to a higher authority by a bidder to an element(s) of the procurement process or to a bid submitted by another bidder. 2. A legal mechanism by which any "interested party" may contest the procedure or outcome of a government contract award. 3

Bid Protests Are… 1.Administrative in nature 2.An alternative to litigation 3.The most common appeal mechanism in public procurement 4.A mechanism to ensure checks and balances 4

Phases of Protest Management 1.Mitigation/Prevention. Reduce the risk. 2.Preparedness. The planning process 3.Response. Steps taken when a protest occurs 4.Recovery. After the protest is resolved 5

Ways to Avoid Protests / Mitigation/Prevention 1.“Say what you are going to do and then do it.” 2.Follow written policies and procedures. 3.Be in charge. 4.Develop specs and requirements in an OBJECTIVE manner. 5.Bid documents should fully define the responsibilities of both parties. 6

Mitigation/Prevention Cont’d 6.Have a 3 rd party review for risks. 7.Actively communicate with bidders. 8.Strive to resolve all concerns before the bid opening and ahead of the bid award. 9.Don’t ignore bidder concerns. 10. Respond promptly. The #1 protest reason: The bidders’ lack of understanding of the ‘whats’ and the ‘whys.’ 7

Mitigation/Prevention Cont’d 11. Provide all bidders with the same info. 12. Hold all bidders to the same requirements. 13. Document all decisions, pertinent conversations, etc. Remember, make it a FAIR and OPEN process. 8

Prepardness Developing a process/plan to follow when a protest occurs. A plan should incorporate these four principles: O bjectivity T imeliness A ccountability L earning 9

Protest Management Plan Key Elements: A Good Plan will: Identify the Protest Team - roles and reponsibilities Contain a Communication Strategy and Plan Set Timeframes and Milestones Identify the Project’s Deliverables 10

Protest Management Plan Identify the Players Active Inactive » Buyer » Staff members » Protest Manager » Legal Support » Legal Support » Other » Response Individual Administrators 11

Protest Management Plan Communications Strategy Who 2. When 3. How 12

Protest Management Plan Timeframes and Milestones 1. Legal consequences/constraints 2.Important Milestones (examples) - Issue Identification - Review Completion Date - Draft Response 13

Protest Management Plan Establish Deliverables Main: The Formal Response to the Protest Others (examples): - Summary of Issues - Listing and Validation of Allegations - Draft Response 14

State University DEPARTMENT OF PROCUREMENT 201 General Administration Building, P.O. Box 1234 College Town, Colorado (303) [DATE] [BIDDER] SUBJECT: Letter of Protest to the Award of ___________: On [DATE] we received your notice of protest on the subject award. This letter is to serve as an interim response while the matter is being thoroughly reviewed. Sincerely, Joseph Schmucketelli Policy and Protest Manager Cc: Interested Parties 15

Writing the Response You’ve Received a Protest You’ve Followed Your Plan You’ve Got Your Recommendation in Hand Now Comes the Response… 16

Writing The Response Writing the response will come only after you and the team have (according to plan): - Identified the issues - Gathered supporting data - Analyzed the information - Received a recommendation 17

Writing The Response Write with Your Audience in Mind - The Protestor - Your Administrators - Newspaper and Other Media Personnel - Attorneys - Judge Conclusions will be drawn from your letter. 18

Writing The Response What’s In It? - Who the players are - What the background is - Why the issues are relevant (or not) - Where you stand - How the conclusion was reached (to deny or uphold the protest) 19

Writing The Response What’s In It? (cont’d) - Introduction – states the purpose and your determination/decision - Background – provides the context - Issues – identifies concerns and disputes - Conclusion – restates your determination that was reached after considering all the evidence 20

Writing The Response What’s In It? (cont’d) Introduction – tells the audience what they are reading and the purpose of the letter. It should also state your Decision. ???? 21

Writing The Response What’s In It? (cont’d) Background – sets the stage for the discussion of the issues After reading this the audience should know: -What happened -Who is impacted -Why the party is protesting 22

Writing The Response What’s In It? (cont’d) Issues – the REAL MEAT of the letter After reading this the audience should know: -The issues and concerns -Relevant findings of fact -Your position arguments on each issue 23

Writing The Response What’s In It? (cont’d) Conclusion – Your decision after considering all the evidence. After reading this the audience should know: -The general basis for your decision -How to appeal (if allowed) -Points of contact and further instructions 24

Bid Protests Questions ?? 25