Bid protest challenging the way governments do business
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Bid Protest: Challenging the way Governments do Business. Kevin M. Long Eric J. Van Schyndle. Agenda. What is a bid protest? Should you protest? What to look for (and ask for) when evaluating your chances on a bid protest What you need in order to Protest Defending against a protest

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Bid Protest: Challenging the way Governments do Business

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Bid protest challenging the way governments do business

Bid Protest:Challenging the way Governments do Business

Kevin M. Long

Eric J. Van Schyndle


Agenda

Agenda

  • What is a bid protest?

  • Should you protest?

  • What to look for (and ask for) when evaluating your chances on a bid protest

  • What you need in order to Protest

  • Defending against a protest

  • Standards to Prevail

  • Procedure and timing of a protest

  • Outcomes


What is a bid protest

What is a Bid Protest?

  • A challenge to a government’s procurement process.

    • Providing offerors an opportunity to ensure a fair and objective process

    • Providing the public with accountability


Should you protest gao protest statistics

Should you Protest?GAO Protest Statistics


Two types of protests

Two Types of Protests

Pre-Award

Post-Award

Challenging the evaluation and award decision.

Common Examples:

Deviating from stated evaluation criteria.

Relaxing RFP requirements.

Unequal discussions

Arbitrary evaluations

  • Challenging the terms of the solicitation

    • Common Examples:

      • The solicitation is unduly restrictive/overstates the government's needs.

      • Ambiguous requirements or terms.

      • Requirements that unnecessarily favor one offeror.


What you need to protest

What you Need to Protest

  • Good Faith Basis

    • SCR 20:3.1

  • Always Start with the Solicitation


Getting the records

Getting the Records

  • Procurement Manual

    • Wisconsin Department of Administration – PRO-D-23

      • “The public may inspect RFB records and may copy them after the notice of intent to award is issued…”

      • “All materials submitted for the RFP process are available for public inspection after the notice of intent to award is issued…”


Getting the records1

Getting the Records

  • Public Records – Wis. Stat. Sec. 19.31 et al.

    • May require a petition for writ of mandamus

  • Common Practices

    • i.e. – DOA


Defending against a protest

Defending Against a Protest

  • Know the Rules

  • Work with the Government

  • Intervene if Permitted and Necessary


Standard arbitrary and capricious

StandardArbitrary and Capricious

  • Whether the government:

    • Kept within its jurisdiction

    • Acted according to law

    • Acted arbitrarily or

    • Made a reasonable decision


Procedure and timing know where you are

Procedure and TimingKnow Where You Are

  • Pre-proposal/bid or Post Award

  • State or Municipal

  • Administrative Review

  • Court Review


Procedure and timing timing is everything

Procedure and TimingTiming is Everything

  • Deadlines typically jurisdictional

    • Very common way to dismiss a protest

    • Courts typically will not revive a blown deadline

    • And PRN…


Don t forget prn

Don’t Forget PRN

  • PRN Associates LLC v. State, 2009 WI 53

    • Once a contract is signed, a protest is moot.


Don t forget wisconsin s new rules

Don’t Forget Wisconsin’s New Rules

  • Single-Prime Contracting

    • Sub-contract protests will likely need to be filed within 48 hours of bid opening on projects valued in excess of $185,000.

    • http://www.doa.state.wi.us/Default.aspx?Page=33519fba-e062-4a0a-8903-67406dbed1ef


Outcomes

Outcomes

  • Know your measure of success beforehand.

  • Protests are always uphill battles, but they can be won.


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