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NASPO National Association of State Procurement Officials

NASPO National Association of State Procurement Officials. Eastern Region Conference June 13 – 15, 2010 Philadelphia, PA. Legal Issues. Agenda. Protest (process and timeline), debriefings Public Access to Procurement Information, Right-to-Know Law, Records Retention Cooperative Contracting.

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NASPO National Association of State Procurement Officials

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  1. NASPONational Association of State Procurement Officials Eastern Region Conference June 13 – 15, 2010 Philadelphia, PA Legal Issues

  2. Agenda • Protest (process and timeline), debriefings • Public Access to Procurement Information, Right-to-Know Law, Records Retention • Cooperative Contracting

  3. Protests Challenging Agency Solicitations and Awards

  4. What is a Protest? A protest is the statutorily-authorized and prescribed way to challenge: 1) a solicitation, or 2) an award

  5. Statutory Authority The protest requirements and procedures are found in the Commonwealth Procurement Code, 62 Pa. C.S. § 1711.1. These protest procedures represent the exclusive mechanism for protesting a solicitation or award of a procurement contract.

  6. Who can file a protest? • A Bidder • A Prospective Bidder • An Offeror • A Prospective Offeror or • A Prospective Contractor Who can file a protest? – Exception NO ONE can protest: 1) The cancellation of an invitation for bids (IFBs) prior to bid opening 2) The cancellation of a request for proposals (RFPs) prior to proposal receipt date 3) The rejection of all bids 4) The rejection of all proposals

  7. Filing the Protest Protests must be filed with the head of the purchasing agency unless the solicitation or agency website delegates that role to another office. When must a protest be filed? • When the Protesting Party is a bidder or offeror or a prospective contractor,… …the written protest must be filed with the head of the purchasing agency within seven (7) days after the Protesting Party knew or should have known of the facts giving rise to the protest. EXCEPT: In no event, may a protest be filed later than 7 calendar days after the contract was awarded.

  8. Untimely Protests • If the Protesting Party fails to file a protest or files an untimely protest, the party has waived its right to protest the solicitation or award of the contract in any forum.

  9. Stay of the Procurement • Immediately upon receipt of the protest, all activity in regard to the solicitation or the award must be suspended. • From the time a protest is timely filed until the time has elapsed to file an appeal with the Commonwealth Court, the procurement is stayed. Stay of the Procurement Exceptions • The agency is not required to stay the solicitation or award if: • The protest is clearly without merit or • Award of the contract without delay is necessary to protect the substantial interests of the Commonwealth.

  10. Contracting Officer Response to the Protest • The Contracting Officer of the purchasing agency must submit, within 15 days, a response to the protest. Response & Reply to the Protest • The Protesting Party may file a response to the Contracting Officer’s response within 10 days of the date of the response.

  11. Written Determination • The head of the purchasing agency must, within 60 days of the filing of the protest, issue a written determination stating the reasons for his/her decision. Appeal • The Protesting Party may file an appeal with the Commonwealth Court within 15 days of the mailing date of the final determination. • No new issues can be raised at this point by the Protesting Party.

  12. Standard on Review • The Court shall affirm the determination of the purchasing agency unless it finds from the record that the determination is arbitrary & capricious, an abuse of discretion, or is contrary to law.

  13. Public Access to Procurement Information Right-to-Know Law

  14. Right-to-Know Law Exemptions • Financial information submitted to demonstrate a bidder or offeror’s economic capability is explicitly protected from public disclosure. • Material relating to a procurement prior to award. We define award as the point when the vendor becomes obligated to provide the service either through the issuance of a purchase order, or putting their signature on a contract. • Material relating to the a transaction involving real property prior to making a decision to proceed with that transaction. • Trade Secrets and Confidential Proprietary Information is protected from disclosure. In order to qualify for such protection, a vendor must submit a signed statement stating that record contains confidential information or a trade secret. It is not sufficient for the vendor to simply claim their entire submission is confidential without justification.

  15. Right-to-Know Law Posting Requirements • Chapter 17 of the Right to Know Law requires that all contracts for $5,000 or more (a) involving any property, real, or personal or mixed of any kind or description or (b) for personal services that are not protected by a privilege, must be posted on a website run the Pennsylvania Treasury.

  16. Records Retention

  17. Records Retention Reference: General Schedule for Records Retention, effective January 12, 2010.

  18. Appendix

  19. 3—5 Days Protest Coordinator drafts acknowledgement and notification letters. Sent to legal & Deputy Secretary for approval. 5—15 Days Receive input from all affected parties IF the affected chooses to respond. Generally requested to be received 2-3 days prior to CPO response due. Date determined by available business days. 3 Days Commodity Director along with legal makes determination of timeliness & merit. NOTE: Untimely determination immediately dismisses the protest. Protest Coordinator prepares draft for legal/Deputy Secretary. 25—60 Days It is the discretion of the Deputy Secretary to request additional information from any party involved in the protest at any time in order to assist in making the final determination. The additional information must be received by a date determined by the Deputy Secretary.Protest Coordinator disseminates to all parties. Deputy Secretary with the approval of the Secretary can schedule a hearing (Protest Coordinator schedules court reporter and room). 5 Days Acknowledgement and notification letters sent to protesting party and all affected parties. NOTE: Letters may go out before day 5. 15 Days Protest Coordinator disseminates CPO response to all parties. InternalProcess 25 Days Protesting party and/or affected party have ten days to reply to CPO response.Protest Coordinator disseminates to all parties. 60 Days Protest Coordinator disseminates final determination to all parties. 1 Day Protest Coordinator assigns docket number. 10 20 30 60 40 50 70 60 Days Deputy Secretary issues final determination. Note: Can be issued prior to day 60 or extended beyond 60 with consent of protesting party. 75 Days Decision can be appealed to Commonwealth Court no later than 15 days following the mailing date of the final determination. 1 Day Protest filed against solicitation (prior to opening date/time). OR Protest filed against award (no later than 7 calendar days after award). 15 Days Based on information received and consultation from legal, the CPO makes recommendation to Deputy Secretary. NOTE: CPO response may be received before day 15. LegalProcess

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