Oregon procurement manual

What are protests?

Protests are complaints or objections made to a governing body by an interested party regarding a procurement decision. There are two types of procurement-related protests:
  1. Protest of a solicitation document or a procurement process.
  2. Protest of the selection of a supplier and award of a contract.
In the first instance, a potential respondent to a solicitation may file a complaint about the contents of the document, including the specifications or scope of work. Additionally, a respondent can object on the basis that the procurement process was not legal or properly followed.
 
Under the second protest type, a respondent can object to the outcome of the evaluation of the bids or proposals or can object based on an improper evaluation process.

When to address protests

Protests can occur throughout the procurement process, depending on the procurement method and the type of protest. A procuring agency should immediately address all protests received.

How to address protests

A procuring agency must provide a protest process based on the type of procurement method it is conducting. According to law, only those procurement methods described below allow for protests.
 
In all cases, a procuring agency must consider timely filed protests that contain sufficient information as required for the procurement method. Generally, a protest halts the procurement. Once filed, the state must review the facts of the protest, and determine and document a written disposition that either sustains or denies the protest. 

Click on a procurement method below to view the associated protest process:

Solicitation document or process protest

For a Competitive Sealed Bidding or Competitive Sealed Proposals procurement method, a potential respondent can protest the solicitation document or process. A potential respondent can file a protest if the bidder or proposer believes any of the following complaints exist:
  • Document is unnecessarily restrictive.
  • Document is legally flawed.
  • Document improperly specifies a brand name.
Additionally a respondent can protest if the bidder or proposer believes the procurement process is unlawful.
The following table describes the steps a bidder or proposer must follow to submit a protest of a solicitation document or process, and the steps the state must follow to act on the protest:
​Protest process ​Process description
Protest submission     ​Written protest is due no less than seven days prior to closing, or as specified in the solicitation document and must contain the following, at a minimum:
  • Information regarding the solicitation subject to protest.
  • The grounds for the protest.
  • Evidence or documentation supporting the grounds for the protest.
  • The relief sought.
  • A statement of the desired changes to the procurement process or the solicitation document that the potential respondent believes will remedy the conditions upon which the potential respondent based its protest.
Protest response

The State Chief Procurement Officer (State CPO) must provide a written disposition of a protest no less than three business days before solicitation responses are due.

If needed, the State CPO may extend the closing date to consider and respond to protests. The procuring agency may issue an addendum to address the protest or cancel the procurement, if necessary.
 
Award protest
In situations where an adversely affected solicitation respondent would be eligible for contract award if the protest were successful, the bidder or proposer may protest the award if the protest is due to:
  • All lower bids or higher ranked proposals being nonresponsive
  • Agency failure to evaluate proposal according to criteria or process described in solicitation
  • Agency abuse of discretion in rejecting bid or proposal as nonresponsive
  • Evaluation of bids, proposals or subsequent award violates ORS 279A or 279B
The following table describes the steps a bidder or proposer must follow to submit a protest of award and the steps the state must follow to act on the protest.
​Protest process ​Process description
Protest submission
​Written protest is due within seven days after either the contract award or issuance of the notice of intent to award, whichever occurs first, or as specified in the solicitation document and must specify the grounds for the protest.
Protest response​ ​The State CPO must provide a written disposition of the protest in a timely manner. The procuring agency may not execute a final contract with the intended awardee until the protest period has passed and the agency has provided written disposition denying any properly filed protests received. If the protest is upheld the agency may award the contract to the protestor or cancel the procurement.
 
Approval for use of a Special Procurement
An individual affected by an approval for the use of a Special Procurement method may file a protest of the approval for use. The following table describes the process a bidder or proposer must follow to submit a protest of an approval for the use of a Special Procurement method, and the process the state must follow to act on the protest.

​Protest process ​Process description
Protest submission​ ​Written protests are due within seven days after first date of public notice of approval of a Special Procurement unless the notice given provides otherwise and must include the grounds for the protest, the harm to the supplier and the relief requested.
Protest response
​The State CPO must provide a written disposition of the protest in a timely manner. If the protest is upheld the State CPO may revoke the approval of the Special Procurement or may require the agency to incorporate the sustained protest in the approval of the Special Procurement.
 

Intermediate procurement
For an Intermediate procurement, a protest is permitted if allowed for in the solicitation document. The inclusion of the opportunity to protest in the solicitation is at the discretion of the procuring agency.

Sole Source procurement
Sole Source procurement requiring public notice, allows for a protest of the determination that a product or service is available from only one source.

Protest process Process description
Protest submission The written protest is due within seven days after first date of public notice of the Request for Sole Source, unless the notice provides otherwise, and must include the legal grounds for the protest, the harm to the affected person and the relief requested.

Protest response The agency Designated Procurement Officer (DPO) must issue a written disposition unless the cumulative value of the contract exceeds $150,000 in which case the State CPO must issue a written disposition of the protest in a timely manner. If the DPO or State CPO upholds the protest, the procuring agency may not enter into a contract with the anticipated sole source supplier and must identify an appropriate alternative procurement method.
 
Multi-tiered and multi-step solicitations
Exclusions from competitive ranges, subsequent tiers, or steps of the solicitation allow for a protest if both of the following circumstances occur:
  • A proposer has submitted a responsible and responsive proposal.
  • Except for a mistake in evaluating the proposals received, the protesting proposer would have been eligible to participate in the next tier or step of competition.

Protest process Process description
Protest submission Unless the Solicitation provides otherwise, the written protest is due within seven days after issuance of the notice of the competitive range or notice of subsequent tiers or steps and must include the grounds for the protest.
Protest response The State CPO must issue a written disposition of the protest in a timely manner. The procuring agency may then issue an addendum to address the protest or cancel the procurement, if necessary.
 
Qualified products list decisions
Suppliers may protest decisions excluding their products from a procuring agency's qualified products list.

​Protest process ​Process description
Protest submission ​Written protest is due within seven days after the decision, unless otherwise stated in the notice to submit products for inclusion on the qualified products list, and must specify the grounds for the protest.
Protest response ​The State CPO must issue a written disposition of the protest in a timely manner. If the protest is upheld, add the successful protestor's products on the qualified products list.
 

 

Practices to avoid protests

Preventative steps

Agencies should take preventive steps to avoid the need for protests. There are numerous ways a procuring agency can work to prevent a protest of its procurement. Solicitation documents should contain clear, concise language, quality specifications, and include a clear description of the procurement, evaluation, and protest processes. A procurement professional can schedule a pre-bid conference, which provides an opportunity to gain awareness of potential areas of protest allowing a procuring agency to address issues through an addendum.

Debriefing

Debriefing is another valuable tool to help avoid protest. The use of debriefing can lead to improved future bidding, reduce future protests, and provide useful feedback on the process used. In many cases, protestors want to understand why a procuring agency did not select their proposal for the contract. Debriefing is especially valuable in the following situations:
  • Complex solicitations
  • No bids or proposals received
  • Anticipated challenges
  • Possible political repercussions
The purpose of the debriefing is to inform the non-selected proposers of the basis for the award decision and contract award. A procurement professional should use debriefing as a forum to discuss the unsuccessful respondent’s proposal only and not discuss the submissions of other proposers. It is a best practice to maintain a list of all attendees along with a summary of the debriefing in the contract file.

A procurement professional should use good judgment when conducting debriefings. A debrief should never address point-by-point comparisons of the debriefed respondent’s proposal with those of other proposals. The procurement professional must not disclose any information that is not public record, including trade secrets, or privileged or confidential commercial or manufacturing information.