5.33.720 Protests and Judicial Review of Multi-Tiered Solicitations.

City Code Section

(Amended by Ordinances 183445, 185898, 187373 and 189878, effective March 4, 2020.)

  1. A.  Interested Offerors may file a Written protest of the Specifications, Contract terms and conditions, pursuant to Section 5.33.730.
  2. B.  Affected Persons may protest in one of two ways:
    1. 1.  If no other protest remedies are provided in the Solicitation Document, Affected Persons can file a Written protest to the Award within seven (7) Days after the issuance of the Notice of Intent to Award pursuant to Section 5.33.740 if they meet the requirements of Subsection 5.33.720 C. below.
    2. 2.  If expressly required or permitted by the Solicitation Document, Affected Persons must file a Written protest after being excluded from the Competitive Range or after being excluded from any subsequent stages of a Procurement.
  3. C.  Basis of Protest.  An Affected Person may protest its exclusion from the Competitive Range or from subsequent stages of a Procurement only if:
    1. 1.  The Affected Person is Responsible and submitted a Responsive Offer;
    2. 2.  The City made a mistake that, if corrected, would have made the Affected Person eligible to participate in the next stage of the Procurement.
    3. 3.  In the case of a competitive request for proposal, the exercise of judgment used by the Evaluation Committee members in scoring written proposals and oral interviews, including the use of outside expertise, if that judgment was biased or not exercised in good faith.  The unbiased, good faith judgment of Evaluation is not grounds for protest.  The unbiased, good faith judgment of Evaluation Committee members will not be a basis for sustaining a protest.
  4. D.  Method of Protest:
    1. 1.  Time:  If the Solicitation document permits or requires protests prior to the City’s issuance of a Notice of Intent to Award, an Affected Person must submit a Written protest specifying its basis within seven (7) Days after the Affected Person was excluded from participating further in the Procurement.
    2. 2.  Contents:  The protest must include the following information:
      1. a.  Sufficient information to identify the errors that led to the Affected Person’s exclusion from the Competitive Range or from subsequent stages of a Procurement;
      2. b.  A detailed statement of all the legal and factual grounds for the protest;
      3. c.  Evidence or supporting documentation that supports the grounds on which the protest is based;
      4. d.  A description of the resulting harm to the Affected Person; and
      5. e.  The relief requested.
  5. E.  Required City Response. The City shall take the following actions, as appropriate:
    1. 1.  The City shall inform the Affected Person in Writing if the protest was not timely filed;
    2. 2.  The City shall inform the Affected Person if it failed to meet the requirements of Subsection 5.33.720 D.2. and the reasons for that failure;
    3. 3.  If the protest was timely filed and provides the information required by Subsection 5.33.720 D.2., the City shall issue a decision in Writing and provide that decision to the Affected Person within a reasonable period of time unless a Written determination is made by the City that circumstances exist that require a shorter time limit.
    4. 4.  If the City denies the protest, it shall inform the Affected Person if the decision is final or whether the Chief Procurement Officer has decided to refer the protest to the Purchasing Board of Appeals or City Council.
  6. F.  Optional City Response: In addition to the requirements of Subsection 5.33.720 E., the Chief Procurement Officer may do any of the following:
    1. 1.  Agree with the protest and take any corrective action necessary;
    2. 2.  Issue a Written response to the protest and provide that decision to the Affected Person;
    3. 3.  Refer the protest and any response to the Board of Appeals for decision;
    4. 4.  Refer the protest and any response to the City Council for decision; or
    5. 5.  Take any other action that is in the best interest of the City while giving full consideration to the merits of the protest.
  7. G.  Judicial Review.  An Affected Person may not seek judicial review unless it has complied fully with the protest requirements of this section and has exercised all administrative appeal rights.  Judicial review is not available if the City elects not to make a Procurement.

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