Strategies for Responding to Bid Protests

By Jack Zeigler, CPPO, C.P.M.

Before discussing the subject of bid protests, an obligatory caveat is in order. When determining how to respond to and mitigate protests, most public entities have particular governance in place, whether it be specific laws, rules, regulations, policies, or procedures. All members of the procurement team share the responsibility of ensuring that the agency is in compliance with the appropriate requirements.

For the public entity, response plans should begin well before a protest is ever received, by answering the following questions:

• Is my agency prepared for a protest?
• Do we have a strategy and a process in place?
• Who are the players and what are their roles and responsibilities?
• How will we handle communications?

Preparing for a protest requires thoughtful planning, which involves an investment
of time and resources. However, that investment is paid back by allowing the agency to respond effectively, efficiently, and timely, in the event a bidder protests the solicitation.

The development of a protest management process is similar to formulating an Emergency Preparedness Plan. The onset of a protest is not the time to start drafting particular procedures and determining roles of individuals. Everyone involved, from top to bottom, should know the response plan and responsibilities of each department member.

The four phases of crisis management are highly applicable to protest management. These phases typically include the following:

1. Mitigation/Prevention, by which the public entity addresses what can be done to reduce the risk of a protest;
2. Preparedness, which focuses on the planning process;
3. Response, which outlines sequential steps to take when a protest occurs; and
4. Recovery, whereby an agency returns to the business at hand after a protest has been resolved.

To help public entities mitigate and prevent bid protests, Part I of this series presented guidelines to reduce the occurrence and severity of protests. (See the "Preventing Protests" article in the February 2006 issue of Government Procurement Journal.)
The next phase of protest management--Preparedness/Planning--focuses on developing procedures to follow when bid protests occur.

Protest management planning is a continuous process that requires constant evaluation. Plans should be routinely reviewed and revised based on experience, research, and changing vulnerabilities.

Overall, a protest management plan should incorporate four principles that will frame the approach for responding to all formal supplier concerns regarding an entity's competitive bidding procedures:

1. Objectivity provides a fair and independent review of all formal supplier concerns raised about, as well as the facts related to, a competitive bidding process.
2. Timeliness requires the public entity to elevate any formal supplier concerns as a priority over other assignments received.
3. Accountability provides all involved individuals with a clear understanding of their responsibilities in support of the approach to managing a protest.
4. Learning provides a means to derive insights from the findings, with regards to successes, challenges, and failures, in order to further develop staff knowledge, skills, and competencies.

Before an entity begins to develop a protest management plan, individuals should take time to investigate existing plans that other agencies have developed. In reviewing these plans, a public purchaser should address the following questions:

• How do other agencies' plans integrate with our plan?
• Are there conflicts?
• What information from other protest management plans can be used in my entity's plan?

As a rule, a protest management plan should incorporate key elements of any well-formulated project plan. The plan should identify the protest team, describe roles and responsibilities of team members, develop a communication strategy, set time frames and milestones, and pinpoint the project's deliverables.

Identify the Players

In developing a protest management plan, an entity must identify those who will be involved in the solicitation review and the development of a response to the protest.

Just as importantly, an agency should identify individuals who may not be actively involved in responding to protests, but nevertheless need to be informed about ongoing developments.

For instance, key members may include an entity's governing body (such as the city council or board of supervisors) or a particular division manager. At minimum, the protest team should include the buyer, a protest coordinator, legal support, and the appropriate individual who will be issuing the agency's response to a protest.

Recommended guidelines are to try and keep the team as small as possible to avoid getting bogged down by "administrivia." Attention should focus on how the entity functions and how team members will work together if a protest occurs.

A protest coordinator should be someone who has a strong working knowledge of bid processes and the agency's purchasing regulations, policies, and procedures.

The protest coordinator's primary role involves spearheading efforts to gather facts and facilitate the development of a recommendation. Of critical importance, this individual should be impartial during all phases of the process. The individual selected should not be part of solicitation activities, where he or she may have exercised direct influence in the procurement and have a personal, vested interest in the results.

Define Roles and Responsibilities

Overall, defining roles and responsibilities for the protest review team will promote efficiency and accountability, as well as determine how individuals will work together during a protest review. The public entity should define what activities should happen, when they will occur, and at whose direction--that is, create an organizational structure for handling bid protests.

During the planning process, both individuals and backup personnel should be assigned to serve designated roles. This procedure will ensure accountability for the protest management plan. Accountability means that the buyer will have a complete contract/purchase file ready for review or that the protest coordinator keeps the protest response efforts on track and meets deadlines.

Develop a Communication Strategy

As a rule, a protest management plan needs to incorporate a communication plan or strategy. Team members should address the "who, when, and how" factors surrounding the entity's communication with the protestor, the awardee, and internal customers. An initial step in this planning process involves determining the appropriate channels of communication to notify applicable parties that a protest has occurred and to instruct these parties on what to do or not to do pending the determination of the protest's outcome.

Equally important, the response plan should outline how to convey information. An entity should avoid verbal communication with the protestor, awardee, or other external stakeholders. Because most verbal communication is subject to interpretation, a situation might be interpreted in a way that does not reflect the public entity's best interest. The entity does not want to become involved in a situation of "he said/she said."

If the protestor calls with any questions or wants clarification during the protest review, advise him or her to send an e-mail or a letter detailing the request. In addition, the entity should only respond in writing to all requests for information. E-mail is a very convenient tool for tracking correspondence, as well as validating dates and times.

To streamline the communications process, an entity should consider writing template letters in advance, rather than requiring staff members to compose each response. By making it easier to tweak small changes, template letters reduce the time-consuming job of beginning correspondence from scratch.

An agency's communication strategy should promote strong control of information. For instance, all information released should be funneled through a single appointed spokesperson. Typically, the spokesperson is the protest coordinator. Controlling communications will increase the likelihood of presenting consistent and accurate information to all interested parties, including the public. This strategy also recognizes that intentional or accidental communication leaks to the protestor or to the awardee may happen through your customer, other purchasing staff, or even the involved buyer. Those leaks can and will increase an entity's exposure to risk.

Establish Time Frames and Milestones

Without setting time frames and milestones, projects can drift from their course and consume excessive time, causing final deadlines to be missed. Overall, managing a protest response effort correlates to managing a project. However, for bid protests, the project can have a critical outcome that includes legal consequences. Staying on track and responding to protests in a timely manner will mitigate legal risks and, as a side benefit, help maintain vendor relationships.

A starting point in establishing time frames and milestones involves determining if there are any legal time constraints. For instance, do legal requirements specify that an entity must respond to a protest within a given amount of time? If legal time requirements exist, the agency is operating against a clock to meet deadlines. Applicable legal requirements must be determined and incorporated into a protest management plan in order to determine the time permitted for other particular milestones, such as identifying issues, reviewing the completion date, and drafting a response.

Pinpoint Deliverables

While the ultimate deliverable is a formal response to the protest, other deliverables are necessary to support the development and finalization of a protest response. Examples include a summary of the protest issues, a listing and validation of the facts in support of or against the protest allegations, and a draft response.

Regardless of how much time and effort was spent on protest management planning, the project team should expect to be surprised. Every protest poses its own unique and often interesting challenges that cannot always be anticipated by the public entity.
In Part III of this protest management series, the final article presented, information will walk public entities through a bid protest, while applying the integrated response plan outlined in this article. Guidelines will include the format and content of an entity's written
response to a bid protest.

Editor's Note: Jack Zeigler CPPO, C.P.M., is Policy and Protest Manager for the State of Washington's Office of State Procurement.
Copies of the protest policy and procedure drafted by the State of Washington, Office of State Procurement, are available upon request. To obtain a copy, contact Zeigler via e-mail: jzeigle@ga.wa.gov.

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This article is the second of a three-part series on protest manage-ment. Find Zeigler's first article, "Preventing Protests," in the February 2006 issue of Government Procurement Journal.

To access archived copies of Zeigler's articles, visit the article archive on www.govpro.com.