Protests Avoiding them where possible, dealing with them when they arrive
Protest basics • Texas Gov’t Code §2155.076 says that CPA-TPASS and “each state agency” shall develop and adopt protest procedures. • Other state agencies’ rules must be “consistent with” the Comptroller’s protest rules. • Rules must include standards for preserving documents and files in anticipation of a protest.
TPASS protest rule • 34 TAC §20.384 – Protest must be filed in writing within 10 working days after the protesting party “knows or should have known” of the occurrence of the action protested. • File with the Director of TPASS, with copies to the using agency and “other interested parties.” • NOTE: “interested parties” is defined in the rule as “all vendors who submitted bids, proposals”, etc. in response to an RFP.
What can be protested? • TPASS rule allows for protests of the: • Solicitation • Evaluation, or • Award • If a vendor submits a protest and says it is protesting the award, but isactually protesting something from the solicitation, is it a valid protest? If the solicitation was legally flawed, does it flow logically that the award wasby definition flawed?
Required elements of a protest The protest must be “sworn” and contain: • Specific identification of the statute or rule allegedly violated. • A specific description of each TPASS action protested or alleged rule or law violated. • Precise statement of any relevant facts. • Statement of anyquestionedfacts or law which must be resolved. • Statement of arguments and authorities supporting the protest or offers to support the protest. • Statement that copies of the protest have been mailed/delivered to the using agency and all other interested parties.
What happens if you receive a valid protest? • TPASS rules specify that if a valid, timely protest is received, “the state shall not proceed further with the solicitation or award of the contract . . . .” • HOWEVER, the “chief clerk” of the CPA (the Deputy Comptroller) mayconsult with TPASS and the using agency and decide to continue with the contract in order to “protect the best interests of the state.” • Question – what is the outcome if the contract has been long-implemented and the protest makes a decent showing that the vendor only just “learned” of the existence of a reason for protest?
Responding to protests – Round 1 • The TPASS rule statesthat all protests may be “settled or resolved” by the director. • If possible it’s always a good idea to try to negotiate with the protestor to address the concerns successfullyso the protest may be withdrawn. • The rule specifies that there shall be a response to the protest by TPASS director, but gives no specific timeframe. • If the finding is that the protest is valid, and the contract has already been awarded, the finding may include an “order” declaring the contract void.
Appeal of initial finding • If the director finds that the protest is not valid, the protesting party may appeal to the general counsel of CPA • The CPA GC may refer the appeal to the “chief clerk” of CPA (the Deputy Comptroller). • The appeal must be filed within 10 working days after TPASS director “sent” the original determination. • If forwarded to the Chief Clerk, the determination is still sent in writing, BUT the decision must also be announced in an open meeting at the next meeting of the SPAC.
Commonemisteaks in prostests • What is “sworn”? Black’s Law Dictionary says it equates to “verified.” In layman’s terms, it means that the claimant must swear to the truth of the matters asserted in its claim. Many filers erroneously conclude that it means notarized, which is not the same thing. • NOT COPYING ALL THE PARTIES! Almost no one does this correctly. • Not filing the protest on time, OR (more commonly) not making an argument that explains WHY the protest isn’t actually late. • Not making any attempt to cite a rule or law violated.
How to avoid protests • The most obvious is . . . always follow the law and rules applicable to your procurement. A corollary to that is . . . always listen to your lawyer’s sage advice. • Write specifications that are understandable, based on what you need (and not what you want or what you’re already buying), and technically defensible. • Make sure to communicate openly and equally with all vendors. • Provide the option of a vendor debrief after the award. • Work closely with your agency’s Open Records/PIA staff to make sure vendors receive prompt and through disclosure of all available materials after the award.
Responding to “complaints” • Often vendors will “complain” about some aspect of the procurement process – through email, phone calls or even letters. • Much like PIA requests, you need to work with clients/counsel to determine if the “complaint” is a protest. • If a vendor is complaining about the process and wants to “appeal” or “file a formal complaint” or similar words, my typical practice is to simply send them an email link to the protest rules and let them figure it out for themselves.
Questions?? David D. Duncan Deputy General Counsel Tx. Comptroller of Public Accounts (512) 463-9482 email@example.com