Download procurement services division

PROCUREMENT SERVICES DIVISION
PROTESTS
• A Presentation to SCAGPO
• 2013 Forum
• Voight Shealy
• State Chief Procurement Officer for
Supplies and Services
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PROCUREMENT SERVICES DIVISION
Objectives of the Presentation
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The Code’s Protest Provisions
The FY 2012/2013 Protest Activity
Significant Panel Rulings
Significant CPO Rulings
Observations by the three CPOs
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PROCUREMENT SERVICES DIVISION
Consolidated Procurement Code
• A prospective bidder, offeror, contractor, or
subcontractor who is aggrieved in connection with
the solicitation of a contract shall protest to the
appropriate chief procurement officer in the
manner stated in subsection (2)(a) within fifteen
days of the date of issuance of the Invitation For
Bids or Requests for Proposals or other
solicitation documents, whichever is applicable, or
any amendment to it, if the amendment is at issue.
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PROCUREMENT SERVICES DIVISION
Consolidated Procurement Code
• Any actual bidder, offeror, contractor, or
subcontractor who is aggrieved in connection with the
intended award or award of a contract shall protest to
the appropriate chief procurement officer in the
manner stated in subsection (2)(b) within ten days of
the date award or notification of intent to award,
whichever is earlier, is posted in accordance with this
code; except that a matter that could have been raised
pursuant to (a) as a protest of the solicitation may not
be raised as a protest of the award or intended award
of a contract.
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PROCUREMENT SERVICES DIVISION
FY 2012/2013 CPO Protests
CPO
Received
Granted
IT
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2
Construction
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Everything Else
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PROCUREMENT SERVICES DIVISION
FY 2012/2013 Panel Decisions
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Panel Decisions during FY2012-2013
Decisions affirming CPO decisions
Decisions overturning CPO decisions
Order of dismissal on withdrawal of
Protest
• Decision on CPO written determination
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8
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2
1
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PROCUREMENT SERVICES DIVISION
Significant Panel Tendencies
• During FY 2012/2013 the Panel:
– Affirmed its unwavering support for RFP
evaluators
– Affirmed its support of Procurement Manager
determinations of bidder non-responsibility
– Affirmed its position that an emergency
procurement is protestable
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PROCUREMENT SERVICES DIVISION
Panel Support of Evaluators
• “Although the Panel agrees with the CPO that the
evaluators' conduct was arbitrary and capricious,
the Panel finds that the conduct did not affect the
outcome of the procurement and was harmless
error. Thus, the Panel reverses the CPO's
cancellation of the solicitation and remands it back
to the CPO for award in accordance with the
Procurement Code and consistent with the
findings herein.” [Excent Corporation, 2013-
2]
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PROCUREMENT SERVICES DIVISION
Panel Support for Procurement
Managers
• “The Panel has noted that it will not
overturn a finding of non-responsibility on
the grounds that it is arbitrary or capricious
unless the appellant “’demonstrate[s] a lack
of reasonable or rational basis for the
agency decision . . . ‘” [Trinity 7, Case No.
2012-8]
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PROCUREMENT SERVICES DIVISION
Emergency Procurements
Protestable
• Otis Elevator Company, Case No. 2013-8
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PROCUREMENT SERVICES DIVISION
New Panel Precedence
• The automatic stay imposed by 11-35-4210(7) applies
not only to any advance of the procurement towards
award, it also applies to the cancellation of a
solicitation under appeal to the Panel [Excent
Corporation, Case No. 2013-3]
• The time allowed to protest an emergency
procurement award starts when the protestant actually
knew about the award [Otis Elevator, Case No. 20138]
• Unbalanced Bids [Advanced Imaging Systems, Case
No. 2013-07]
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PROCUREMENT SERVICES DIVISION
Panel Precedence – Automatic
Stay
• The Code reads, “In the event of a timely protest pursuant to
subsection (1), the State shall not proceed further with the
solicitation or award of the contract until ten days after a
decision is posted by the appropriate chief procurement officer,
or, in the event of timely appeal to the Procurement Review
Panel, until a decision is rendered by the panel except that
solicitation or award of a protested contract is not stayed if the
appropriate chief procurement officer, after consultation with
the head of the using agency, makes a written determination that
the solicitation or award of the contract without further delay is
necessary to protect the best interests of the State. [11-354210(7) Automatic Stay of Procurement During Protests]
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PROCUREMENT SERVICES DIVISION
New Panel PrecedenceAutomatic Stay
• The Panel finds that the automatic stay imposed
by section 11-35-4210(7) precludes any action,
including cancellation, with regard to a protested
solicitation so long as the protest or appeal to the
Panel is pending unless the stay is lifted first. This
finding does not prohibit the CPO from canceling
a solicitation during the protest process, it merely
confirms that he must do so in compliance with
the requirements of section 11-35-4210(7).
[Excent Corp. Case No. 2012-3]
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PROCUREMENT SERVICES DIVISION
New Panel Precedence –
Emergency Procurements (1)
• “The Panel finds that this statutory
Provision [11-35-1570] does not mention
any posting (of award) requirement, nor
does it incorporate by reference the
requirements of competitive sealed bidding
set forth in section 11-35-1520 of the
Procurement Code.” [Otis Elevator
Company, Case No. 2013-8]
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PROCUREMENT SERVICES DIVISION
New Panel Precedence –
Emergency Procurements (2)
• “The Panel concludes that because USC
was not required to post an award notice,
Otis’ argument that the protest period
remains open until ten days after such
posting occurs is without merit.”
• “It is reasonable to apply an actual notice
standard in circumstances where the posting
of a formal notice is not required.” [Otis
Elevator Company, Case No. 2013-8]
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PROCUREMENT SERVICES DIVISION
New Panel Precedence –
Unbalanced Bids (1)
– The State may reject an Offer as nonresponsive if
the prices bid are materially unbalanced between
line items or subline items. A bid is materially
unbalanced when it is based on prices significantly
less than cost for some work and prices which are
significantly overstated in relation to cost for other
work, and if there is a reasonable doubt that the bid
will result in the lowest overall cost to the State
even though it may be the low evaluated bid, or if it
is so unbalanced as to be tantamount to allowing an
advance payment. [The Compendium]
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PROCUREMENT SERVICES DIVISION
New Panel Precedence –
Unbalanced Bids (2)
• “The Panel finds that the following elements must be
proven in the instant case to establish a materially
unbalanced bid: (1) there must be evidence showing
that some prices are significantly less than cost for
some line items; (2) there must be evidence showing
that some prices are significantly more than cost for
some line items; and (3) there is reasonable doubt that
the bid will result in the lowest overall cost to the
State despite being the low evaluated bid.” [Advanced
Imaging Systems, Case No. 2013-07]
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PROCUREMENT SERVICES DIVISION
Other CPO Issues This Year
• Bids Submitted or Were They? (1)
– Bidder submitted a bid on-line in SCEIS and
also hand delivered a different hard copy bid to
the bid opening. Agency stamped in the hard
copy, but upon learning his on-line bid was
received, handed the hard copy bid back to the
bidder.
– Bidder alleged he delivered his hard copy bid
prior to the bid opening so it should be
considered. [CPO Case No. 2013-124]
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PROCUREMENT SERVICES DIVISION
Other CPO Issues This Year
• Bids Submitted or Were They? (2)
– Bidder submitted an on-line bid in SCEIS and
received confirmation from SCEIS, which she
printed.
– But, because the bidder had two windows open
in SCEIS, the system did not accept the bid.
– [CPO Case No. 2013-127]
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PROCUREMENT SERVICES DIVISION
CPO Observations
• Determination of responsibility conducted on the
parent company, not the subsidiary actual offeror
• Requirements of Part III, Scope of Work v. Part
IV, Information for Offerors to Submit
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PROCUREMENT SERVICES DIVISION
CPO Observations
• Determination of responsibility conducted on
the parent company, not the subsidiary actual
offeror
• BIG Parent Company
• Mid-Level Holding Company
• LLC Actual Offeror
• Make sure you are looking at the actual
offeror, or get the parent to underwrite the
contract.
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PROCUREMENT SERVICES DIVISION
CPO Observations
• Requirements of Compendium Part III,
Scope of Work v. Part IV, Information for
Offerors to Submit
• Part III, Scope of Work – addresses the
performance requirements of the solicitation
• Part IV, Information for Offerors to Submit
– addresses how we would like offerors to
organize their proposals
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PROCUREMENT SERVICES DIVISION
CPO Observations
• Part III, Scope of Work
– Addresses the “essential requirements” of the
solicitation
– Responsiveness should be determined based
upon offerors’ answers to Part III
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PROCUREMENT SERVICES DIVISION
CPO Observations
• Part IV, Information for Offerors to Submit
– Does not add “essential requirements” of the
solicitation
– Too often, agencies try to add “non-essential”
requirements in Part IV and evaluate offeror
responsiveness on what they provide in
response to Part IV.
– Examples: References, “similar references”,
answers to certain questions, responsibility
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PROCUREMENT SERVICES DIVISION
Come on Man!
• I’m a responsible bidder even though the State of
SC filed two tax liens against my company
• My quote was lower (even though I didn’t submit
a bid)
• My voluntary suspension should be lifted even
though I did not meet its terms
• You should consider my hardcopy bid even
though I never actually surrendered it
• I was trapped in the stairwell causing my
bid to be late
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PROCUREMENT SERVICES DIVISION
Questions
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PROCUREMENT SERVICES DIVISION
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