PROTEST: NON-IT GOODS and IT GOODS and SERVICES - 1702

Terminology for Initial Protest and Protest of Proposed Award

An initial protest (also known as a protest of requirements) is a supplier’s challenge or objection to any administrative, technical or cost specification/requirement(s) contained in a formal IT competitive solicitation.

A protest of proposed award is a challenge by a participating bidder against the proposed contract award of a non-IT goods contract under Public Contract Code(PCC), Section 10306 or an award of a IT goods and services contract under PCC, Section 12102.2(g).

Who May File and When to File a Protest 

Any supplier who submitted a bid may file an initial protest of IT requirements for solicitations conducted under PCC, Section 12102.2(g) or solicitations conducted under PCC, Section 12125 et seq. that contain provisions for protests of requirements.  Protests of requirements must be received in writing by the soliciting department by the date and time established in the solicitation document.

For non-IT goods, a bidder may file a protest of proposed award conducted under PCC, Section 10306 for non-IT goods, prior to award, with the department against the awarding of the contract or purchase order on the grounds that he or she is the lowest responsible bidder meeting specifications.

When a contract or purchase order is not to be awarded to the lowest bidder, the bidder must be notified 24 hours prior to awarding the contract or purchase order.  If protested, the award shall not be made until either the protest has been withdrawn or the VCGCB has made a final decision as to the action to be taken relative to the protest.  The 24 hour period excludes Saturdays, Sundays and legal holidays.

For IT goods and services, any supplier that submits a final bid (called a participating bidder) may protest the proposed award of a contract.

For procurements conducted under PCC, Section 12102, the protestant may protest on the grounds that their bid is responsive to the requirements of the solicitation and that their bid should have been selected for award in accordance with the selection criteria in the solicitation document.  Protests of proposed award under 12102.2(g) shall be filed during the five (5) day period (must exclude Saturday, Sunday, and legal holidays) specified in the public posting of the “Intent to Award” notice.

For Major Information Technology Acquisition procurements conducted under PCC, Section 12125, the protestant may protest on the grounds that there was a violation of the solicitation procedures and their bid should have been selected.  For all other acquisitions conducted under PCC, Section 12125 et seq., the protestant may protest on the grounds their bid or proposal was responsive to the requirements and should have been selected in accordance with the selection criteria in the solicitation.  Protests of proposed award under 12125 et seq. shall be filed during the timeframe specified in the solicitation document which will be no less than 1 and no more than 5 working days after the posting of the Notice of Intent to Award.

Handling a Protest

When a buyer receives an initial protest or a supplier/bidder has notified the buyer of their intent to submit an initial protest or protest of proposed award:

1. A supplier/bidder shall submit a protest in written format via facsimile, e-mail, or letter to the buyer identified in the solicitation by the time and date identified in the solicitation.  If a supplier/bidder notifies the buyer verbally via telephone or in person of intent to protest, the buyer must notify the supplier/bidder that a written protest is required to start the resolution process.  The buyer will notify the DGS/PD/DR of receipt of the written initial protest and confirm whether or not the initial protest is timely submitted.  The Deputy Director has final authority to resolve the protest.  If prior to receiving the written version of a verbal protest, a buyer has reason to believe the protest has merit or should be investigated prior to opening the bids, the buyer shall advise management.
2. When an initial protest has been received, the buyer is to immediately notify the DGS/PD/DR by phone and by fax or electronic mail:

Protest Coordinator, Dispute Resolution

Phone:  (916) 375-4581

FAX:     (916) 376-6226

Email:   PDProtest@dgs.ca.gov

3. Any further action on the solicitation must stop until the initial protest has been resolved either through a withdrawal of the protest or a written final determination by the DGS.

4. The DGS/PD/DR staff:

• The initial protest shall be acknowledged
• An independent review of the initial protest in relationship to the solicitation document shall be conducted immediately
• Legal advice will be sought
• Communication with the buyer receiving the protest shall be maintained
• A written final resolution shall be sent to the supplier who filed the initial protest

INITIAL PROTEST OF SPECIFICATIONS	PROTEST OF PROPOSED AWARD
The buyer and DGS/PD/DR staff shall work together to resolve an initial protest of requirements by initiating and coordinating a response to the supplier.  Issues to be considered are whether or not: The solicitation’s technical, administrative, or cost requirements can be defended or The supplier has raised a valid issue and clarification or change to the solicitation can be provided through an addendum to the solicitation or The concern raised by the supplier has merit and it is in the State’s best interest to cancel the solicitation.	The buyer provides DR with copies of all documents meeting the regulatory definition of the solicitation file including, though not limited to, the solicitation and all addenda, the evaluation and selection analysis, the bidder recap, the recommendation for award, and any other documentation or information used to determine the proposed award.  DR works with the buyer to validate documents to be submitted to the VCGCB.
The buyer will draft a written response to the supplier, and DGS/PD/DR will assist in the draft, review, and comments as necessary to ensure the response appropriately reflects the concurrence that is reached.  The buyer will send the approved response to the supplier and to DGS/PD/DR.	DR staff prepares and transmits all required formal documentation to meet regulatory notification and submission of the protest to the VCGCB.
Dependent upon the resolution, the buyer: Continues with the competitive bid process through contract award without amendment when the initial protest is resolved by DGS/PD Deputy Director, or Cancels the solicitation, or Amends the solicitation to change the solicitation to reflect the initial protest in part or in whole.	Within ten calendar days after filing the intent to protest of the proposed award, the bidder/protestant, in their detailed statement of protest, must provide relevant facts and evidence to support their claim.  The detailed statement should include citations to pertinent laws, rules, regulations, or procedures on which the protest is based.
	The DR, buyer, and legal counsel ensure that the State’s response is drafted to represent the facts and legal standing of the State’s decision to defend its proposed award.  The DR ensures that all deadlines and milestones are met.
	The DR, buyer and legal counsel review the protestant’s rebuttal to prepare for a potential hearing or next steps.
	The VCGCB reviews all submitted documentation and will determine notification and hearing dates to be scheduled as necessary.  The hearing officer prepares his/her proposed decision which is decided by the three-member board, resulting in a final administrative decision regarding the protest.

Adjustment of Bid Due Date may be Required

If a resolution of the initial protest results in an addendum to the solicitation and the addendum requires additional time for suppliers to respond, the solicitation due date shall be adjusted to allow additional time for suppliers to respond to the changed solicitation.