Bid Protests: A Best Practice Approach

Presented by:Steve Ballew, C.P.M., CPPO

NAEP Annual MeetingDenver 2010

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Suddenly, a heated exchange took place between the king and the moat contractor.

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.

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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

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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

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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.

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Mitigation/PreventionCont’d

6. Have a 3rd 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.’

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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.

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Prepardness

Developing a process/plan to follow when

a protest occurs.

A plan should incorporate these

four principles:

• Objectivity

• Timeliness

• Accountability

• Learning

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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

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Protest Management Plan

Identify the Players

Active Inactive

» Buyer » Staff members

» Protest Manager » Legal Support

» Legal Support » Other

» Response Individual Administrators

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Protest Management Plan

Communications Strategy

• Who

2. When 3. How

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Protest Management Plan

Timeframes and Milestones

1. Legal consequences/constraints

2. Important Milestones (examples)

- Issue Identification

- Review Completion Date

- Draft Response

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Protest Management Plan

Establish Deliverables

Main: The Formal Response to the Protest

Others (examples):

- Summary of Issues

- Listing and Validation of Allegations

- Draft Response

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State UniversityDEPARTMENT OF PROCUREMENT

201 General Administration Building, P.O. Box 1234 College Town, Colorado 80200 (303) 867-5309

[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 SchmucketelliPolicy and Protest Manager

Cc: Interested Parties

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Writing the Response

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

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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

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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)

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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

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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.

????

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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

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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

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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

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Bid Protests

Questions ??

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