nancy brooks director of purchasing iowa state university avoiding bid protests and handling the...

Nancy BrooksDirector of PurchasingIowa State University

AVOIDING BID PROTESTSand

HANDLING THE ONES THAT HAPPEN

1Annual MeetingApril 7 - 10, 2013Orlando, Florida

Overview

What Is A Bid Protest?•A formal complaint against some aspect of a procurement process which asserts either:

– A violation of policy, procedure or law; or– A decision that lacks any rational basis

Annual MeetingApril 7 - 10, 2013Orlando, Florida

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Overview

• What is a decision lacking a rational basis?

– 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


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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;


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• 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)


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• 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.


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• Sole source contracts;

• Best-value determinations; or

• Abuse of discretion and disparate treatment of bidders.


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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.”


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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.”


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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.”


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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 (2nd) gave reasons regarding responsibility, transitioning plan, and method of conducting background checks.

• Found that award decision was arbitrary and capricious.


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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 .


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Protests

• Avoidance is best practice• Protests are time consuming and costly• Damages relationships


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HOW TO AVOID BID PROTESTS

Sometimes You Can’t!

Even when you are confident with your award

YOU MAY BE CHALLENGED


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EXAMPLES OF PROTESTS

• Emergency Generator & Transfer Switchesawarded to low compliant bidders (in-state)

– Protest: From low non-compliant bidder (out-of-state)– Based on: Price

No local preference clause in bidFailure to notify all bidders with bid tab

within 7 days per state statute (?)


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Examples of Protests

• Disposable Gloves for Dining Servicesawarded 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.


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• Vending Machine Energy Control Unitsawarded 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 3rd party review of protest – Rule #8 – be willing to submit any major controversies to

arbitration or other 3rd party review insofar as established policies of institution permit.”


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• Version Control Softwareawarded to low compliant bidder with best solution

– Protest: From other bidder– Based on:

1. Challenged the evaluation process and criteria2. Bid process be reopened and allow them to engage more in

decision making process3. Keep request confidential


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• Tent Rental and Event Set-Up Contractawarded 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.


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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)


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• 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


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• 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


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Protests

• Avoidance is best practice• Protests are time consuming &

costly• Damage relationships


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THANK YOU

QUESTIONS?


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nancy brooks director of purchasing iowa state university avoiding bid protests and handling the...

Documents

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floridaannual meeting

solicitationa decision

alla decision

states decision

bid protestsleading

open bid process

law ora decision