Procurement Chapter 17 - Protests and Protestor's Remedies

RESPONSIBLE CITY AGENCY:         Finance Division - Procurement

KEY WORDS:           Procurement, protests, appeals, remedies.

Controversies and protests shall be conducted in accordance with the requirements set forth in Salt Lake City Code Chapter 3.24, including those parts of the Utah Procurement Code (specifically parts 16 – 19 of Utah Code Chapter 63G-6a) expressly adopted under Salt Lake City Code Section 3.24.210, or its successor section.  All definitions in the foregoing adopted parts of the Utah Procurement Code shall apply to this Rule unless otherwise specified in this Rule. This administrative rule provides additional requirements and procedures and must be used in conjunction with Chapter 3.24 of the Salt Lake City Code.

(1) This Rule shall apply to all protests filed under Chapter 3.24 of the Salt Lake City Code.

(2) In accordance with the requirements set forth in Utah Code Section 63G-6a-1602(3)(a)(ii), a person filing a protest must include a concise statement of the grounds upon which the protest is made.

(a) A concise statement of the grounds for a protest should include the relevant facts leading the protestor to contend that a grievance has occurred, including but not limited to specifically referencing:

(i) an alleged violation of Chapter 3.24 of the Salt Lake City Code;

(ii) an alleged violation of the City’s Administrative Rules governing procurement matters;

(iii) a provision of the request for proposals, invitation for bids, or other solicitation allegedly not being followed;

(iv) a provision of the solicitation alleged to be:

(A) ambiguous;

(B) confusing;

(C) contradictory;

(D) unduly restrictive;

(E) erroneous;

(F) anticompetitive; or

(G) unlawful;

(v) an alleged error made by the selection committee or procurement unit;

(vi) an allegation of bias by the selection committee or an individual committee member; or

(vii) a scoring criteria allegedly not being correctly applied or calculated.

(b) "Relevant Facts" as referred to in Utah Code Section 63G-6a-1602(3)(a)(ii), in addition to being relevant, must be specific enough to enable the protest officer to determine, if such facts are proven to be true, whether a legitimate basis for the protest exists.

(c) None of the following qualify as a concise statement of the grounds for a protest:

(i) claims made after the opening of bids or closing date of proposals that the specifications, terms and conditions, or other elements of a solicitation are ambiguous, confusing, contradictory, unduly restrictive, erroneous, or anticompetitive;

(ii) vague or unsubstantiated allegations that do not reference relevant or specific facts including, but not limited to, vague or unsubstantiated allegations by a bidder, offeror, or prospective contractor that:

(A) a bidder, offeror, or prospective contractor should have received a higher score or that another bidder, offeror, or prospective contractor should have received a lower score;

(B) a service or product provided by a bidder, offeror, or prospective contractor is better than another bidder's, offeror's, or prospective contractor's service or product;

(C) another bidder, offeror, or prospective contractor cannot provide the procurement item for the price bid or perform the services described in the solicitation; or

(D) any item listed in Utah Code Section 63G-6a-1602(3)(a)(ii) has occurred that is not relevant or specific;

(iii) filing a protest requesting:

(A) a detailed explanation of the thinking and scoring of selection committee members;,

(B) protected information beyond what is provided under the disclosure provisions of Utah Code Section 63G-2-305 or its successor section; or

(C) other information, documents, or explanations reasonably deemed to be not in compliance with the Salt Lake City Code or this Rule by the protest officer.

(d)   In accordance with Utah Code Section 63G-6a-1603(1), a protest officer may dismiss a protest if the concise statement of the grounds for filing a protest does not comply with this Rule.

A person filing a protest may be asked to verify that the person has legal authority to file a protest on behalf of the public or private corporation, governmental entity, sole proprietorship, partnership, or unincorporated association.

(1) Application. This Rule contains provisions applicable to intervention in a protest, including who may intervene and the time and manner of intervention.

(2) Period of Time to File. After a timely protest is filed in accordance with the Salt Lake City Code, the Protest Officer shall notify awardees of the subject procurement and may notify others of the protest. A Motion to Intervene must be filed with the Protest Officer no later than ten days from the date such notice is sent by the Protest Officer. Only those Motions to Intervene made within the time prescribed in this Rule will be considered timely. The entity or entities who conducted the procurement and those who are the intended beneficiaries of the procurement are automatically considered a Party of Record and need not file any Motion to Intervene.

(3) Contents of a Motion to Intervene. A copy of the Motion to Intervene shall also be mailed or emailed to the person protesting the procurement.

(4) Any Motion to Intervene must state, to the extent known, the position taken by the person seeking intervention and the basis in fact and law for that position. A Motion to Intervene must also state the person's interest in sufficient factual detail to demonstrate that:

(a) the person seeking to intervene has a right to participate which is expressly conferred by statute or by City rule, order, or other action; and

(b) the person seeking to intervene:

(i) has or represents an interest which may be directly affected by the outcome of the proceeding, including any interest as a:

(A) consumer;

(B) customer;

(C) competitor;

(D) security holder of a party; or

(ii) the person's participation is in the public interest.

(5) Granting of Status. If no written objection to the timely Motion to Intervene is filed with the Protest Officer within seven calendar days after the Motion to Intervene is received by the protesting person, the person seeking intervention becomes a party at the end of this seven day period if that person has otherwise complied with the requirements for intervention set forth in this Section 17.4. If an objection is timely filed, the person seeking intervention becomes a party only when the motion is expressly granted by the Protest Officer based on a determination that a reason for intervention exists as stated in this Rule. Notwithstanding any provision of this Rule, an awardee of the procurement that is the subject of a protest will not be denied their Motion to Intervene, regardless of its content, unless it is not timely filed with the Protest Officer.

(6) Late Motions. If a Motion to Intervene is not timely filed, the motion shall be denied by the Protest Officer.

At any time during the protest process, if it is discovered that a procurement is out of compliance with any part of the Salt Lake City Code or Administrative Rules, including errors or discrepancies, the protest officer or chief procurement officer may take administrative action to correct or amend the procurement to bring it into compliance, correct errors or discrepancies or cancel the procurement.

The City hereby adopts the provisions of Utah Administrative Rule R33-17 - Procurement Appeals Board, or its successor administrative rule.

The City hereby adopts the provisions of Utah Administrative Rule R33-18 - Appeals to Court and Court Proceedings, or its successor administrative rule.

          CURRENT REFERENCES:  Salt Lake City Code §§ 3.24.210 to 3.24.240 

                                                 Parts 16 – 19 of Utah Code Chapter 63G-6a

          PRE-1996 REFERENCES: Salt Lake City Procurement Policy 3.09.002, Part 10

          AMENDED EFFECTIVE DATE:    October 21, 1997

                                                         March 8, 2017