Purpose
To detail procedures for filing protests relative to bids and quotations.
Scope
This procedure shall apply to all protests.
General
An enclosure detailing the BJCTA bid protest policy will be included with all bid, proposal or written quotation requests. A copy of FTA bid protest appeal procedures, FTA Circular 4220.1F will be provided by the Procurement Officer or Procurement Manager upon bidder request.
A. Definitions for Purposes of the section
1. Day- refers to working days of the Authority.
2. The term “interested party” means any person (a) who is an actual bidder or
prospective bidder in the procurement involved, and (b) whose direct economic
interest would be affected by the award of the contract or by a failure to award
the contract.
Note – The Federal Transit Administration (FTA) will be notified by the BJCTA of all formal, written protests, when FTA funds are involved. The BJCTA will keep the FTA informed of the status of any FTA assisted Procurement protests.
B. The Birmingham-Jefferson CountyTransit Authority (BJCTA/ Authority) will hear and consider a bona fide bid protest regarding its procurement actions. It is anticipated that the majority of protests will be evaluated and finally decided by the Authority. Accordingly, the Authority intends to provide a thorough review of all bona fide bid protests. The Authority’s primary concern, however, is the timely procurement of needed capital equipment, supplies or services. It does not intend to allow the filing of protests to unnecessarily delay the procurement process, especially if the protest involved is vexatious or frivolous in nature.
Notwithstanding the availability of these protest procedures, any interested party is encouraged to exhaust all methods described in this section of resolving an issue before filing a formal protest with the Authority. In its consideration of a protest, the Authority reserves the right to give due consideration to the good faith efforts of the protestor to resolve the issue involved through informal methods.
C. Submission of Protest
Any interested party may file a protest with the Authority on the basis that the Authority has failed to comply with applicable Federal or State Regulations or with the Authority’s Procurement Process. The protest must be filed in
accordance with the timing requirements set forth in subsection D. “Types of Protests and Timing” of this section, and must include:
The name, phone number, e-mail and address of the protestor.
The RF and proposed contract number of the solicitation.
A statement of grounds for the protest, a statement as to what relief is requested, and in particular the Federal or State law or Authority Process alleged to have been violated. This statement should be accompanied by any supporting documentation the protesting party desires the Authority to consider in making its decision.
Protest should be submitted to:
Procurement Manger
ATTN: BJCTA
PROCUREMENT DEPARTMENT
1801 MORRIS AVENUE
2ND FLOOR
BIRMINGHAM, AL 35203
D. Types of Protests and Timing
The requirement for timely filing of protest with the Authority will depend upon the type of protests involved. The Authority will consider the following three types of protest by interested parties:
1. Protest regarding solicitation
Any potential bidder believing that bid documents or drawings contain restrictive specifications or any other improprieties regarding the solicitation for bids may file a protest with the Authority which shall be received by the Authority not later than seven (7) working days prior to bid opening and shall contain all reasons for the protest. The Authority will respond to the protest within five (5) working days of receipt of the protest, and the protester will have five (5) working days to appeal the Authority’s initial response to the Authority. Once an appeal has been received, the Authority will render its final decision in writing within ten (10) working days.
This type of protest would include any claim that the solicitation contained exclusionary or discriminatory specification, any challenge to the basis of award, or any claim that the solicitation documents or the solicitation process violated applicable Federal or State law, or that the Authority failed to follow its Procurement Process in the solicitation.
a. Protests received before contract award will be responded to by the Authority within five (5) working days upon receipt of the protest by the Executive Director. The protester will have five (5) working days to appeal the Authority’s initial response to the Authority. Once an appeal has been received, the Authority will render its final decision in writing within ten (10) working days.
b. Protests filed after contract award must be received by the Authority within five (5) working days after notification of award. The Authority will respond within five (5) working days following the next scheduled Authority Board meeting provided the protest is received at least ten (10) working days before a board meeting. The response to the protest shall be received by the protester within five (5) working days after the next scheduled Board meeting. The protester will have five (5) working days to appeal the Authority’s initial response to the Authority. Once an appeal has been received, the Authority will render its final decision in writing within ten (10) working days.
– Protests regarding Requirements and Responsiveness
Any protest regarding the requirements and responsiveness of solicitation by the Authority must be filed with Authority no later than five (5) business days after receipt of letter of notification of non-responsiveness. Any protest filed after such date regarding the requirements and responsiveness will not be considered by the Authority.
This type of protest would include any challenge to determinations by the Authority of the responsiveness of or the responsibility of a bidder, or any claim that the requirements and responsiveness of solicitation violated Federalor State law or the Authority’s Procurement Process.
Protest Regarding Receipt of Non-Award Notification
Any protest regarding the award of the contract must be filed no later than five
(5) business days after receipt of Non- Award Notification. Any protest
regarding the award of the contract filed after that date will not be considered
by the Authority.
This type of protest will only be entertained by the Authority if the protestor is able to demonstrate that the party awarded the contract fraudulently represented itself as a responsible bidder or that the Authority violated Federal or State regulations or its Procurement Process in the award of the contract.
2. Authority Response
The Authority will notify the protestor upon timely receipt of a protest and may, where appropriate, request additional information from the protestor. The Authority may, at its discretion, meet with protestor to review the matters raised by the protest. The Authority’s consideration of the particular types of protests will, except as otherwise stated in subsection 2. “Decisions by Authority” of this section E. “Authority Response” in accordance with the
following provisions:
1. Types of Protests
a. Protest regarding solicitation
Upon receipt of a timely filed protest regarding the solicitation, the Authority will postpone the opening until resolution of the protest. No additional solicitations will be accepted during the period of postponement.
If the protest regarding the solicitation involves a claim of unduly restrictive or exclusionary specifications, the Authority will, in evaluation of the protest, consider both the specific need of the Authority for the feature or item challenged and any effects on competition of including the specifications regarding that feature or item. If the Authority determines that such feature or item was included in the specification in order to meet justified and valid transit needs of the Authority, and was not unduly restrictive of competition or designed to exclude a particular competitor, then the Authority will have grounds to deny the protest.
b. Protest regarding requirement and responsiveness Upon receipt of a timely filed protest regarding the requirements responsiveness, the Authority will suspend its evaluation of all solicitations submitted until resolution of the protest, if the Authority determines that the protestor has established that there are reasonable doubts regarding the responsiveness of a bid or the responsibility of a bidder or regarding the Authority’s compliance with Federal or State Regulations or its Procurement Process.
c. Protests after non-award notification Upon receipt of a timely filed protest regarding the non-award notification the Authority will not proceed with contract, if necessary, until the resolution of the protest if the Authority determines that the protestor has established a prima facie case that the contract was awarded fraudulently or in violation of that Federal or State Regulations or the Authority’s Procurement Process.
3. Decisions by Authority As indicated above, in most instances the Authority will suspend the procurement process upon receipt of a bona fide protest. However, the Authority reserves the right, notwithstanding the pendency of a protest, to proceed with the appropriate action in the procurement process or under the contract in the following cases:
a. where the item to be procured is urgently required;
b. where the Authority determines that the protest was vexatious or frivolous; and
c. where delivery or performance will be unduly delayed or other undue harm will occur, by failure to make the award promptly.
After reviewing the protest submitted under this section, the Authority will issue a written decision of the basis of the information provided by the protestor, the results of any meetings with protestor, and the Authority’s own investigation. If the protest is upheld, the Authority will take appropriate action to correct the procurement process and protect the rights of the protestor, including re-solicitation, revised evaluation of solicitation or Authority determinations, or termination of the contract. If the protest is denied, the Authority will lift any suspension imposed and proceed with the procurement process.
7.1.1 Notification to FTA
The Authority will notify FTA when it receives a third party contract protest to which Circular 4220.1F applies, and will keep FTA informed about the status of the protest.
As mentioned in 7.1 of this manual – The Federal Transit Administration (FTA) will be notified by the BJCTA of all formal, written protests, when FTA funds are involved. The BJCTA will keep the FTA informed of the status of any FTA assisted Procurement protests.
7.1.2 SECTION II – FTA PROTEST PROCEDURE
Reviews of protests by FTA will be limited to claims that the Authority failed to have or follow protest procedures, or claims the Authority failed to review a complaint or protest. A protestor must exhaust all administrative remedies with the Authority before pursuing a protest with FTA. An appeal to FTA must be received by the cognizant FTA regional or Headquarters Office within five (5) working days of the date the protester knew or should have known of the violation.
Under certain circumstances, protest may be made to the FTA in accordance with FTA circular 4220.1F.
7.1.3 FTA’s Appeals Requirements
FTA‘s Role and Responsibilities. FTA has developed an appeals process for reviewing protests of a recipient‘s procurement decisions.
(1) Requirements for the Protester. The protester must:
(a) Qualify as an ―Interested Party. Only an ―interested party‖ qualifies for FTA review of its appeal. An interested party‖ is a party that is an actual or prospective bidder or offeror whose direct economic interest would be affected by the award or failure to award the third party contract at issue.
1. Subcontractors. A subcontractor does not qualify as an ―interested party‖ because it does not have a direct economic interest in the results of the procurement.
2. Consortia/Joint Ventures/Partnerships/Teams. An established consortium, joint venture, partnership, or team that is an actual bidder or offeror and is acting in its entirety, would qualify as an ―interested party‖ because it has a direct economic interest in the results of the procurement. An individual member of a consortium, joint venture, partnership, or team, acting solely in its individual capacity, does not qualify as an ―interested party‖ because it does not have a direct economic interest in the results of the procurement.
3. Associations or Organizations. An association or organization that does not perform contracts does not qualify as an ―interested party,‖ because it does not have a direct economic interest in the results of the procurement.
(b) Exhaust Administrative Remedies. The protester must exhaust its administrative remedies by pursuing the recipient‘s protest procedures to completion before appealing the recipient‘s decision to FTA.
(c) Appeal Within Five Days. The protester must deliver its appeal to the FTA Regional Administrator for the region administering its project or the FTA Associate Administrator for the program office administering its project within five (5) working days of the date when the protester has received actual or constructive notice of the recipient‘s final decision.
Likewise, the protester must provide its appeal to the FTA Regional Administrator for the region administering its project or the FTA Associate Administrator for the program office administering its project within five (5) working days of the date when the protester has identified other grounds for appeal to FTA. For example, other grounds for appeal include the recipient‘s failure to have or failure to comply with its protest procedures or failure to review the protest.
(2) Extent of FTA Review
As provided in the Common Grant Rule for governmental recipients, FTA will limit its review of third party contract protests as follows:
(a) The Recipient‘s Procedural Failures. FTA will consider a protest if the recipient:
1. Does not have protest procedures, or
2. Has not complied with its protest procedures, or
3. Has not reviewed the protest when presented an opportunity to do so.
(b) Violations of Federal Law or Regulations. FTA will not consider every appeal filed by a protestor of an FTA recipient‘s protest decision merely because a Federal law or regulation may be involved. Instead, FTA will exercise discretionary jurisdiction over those appeals involving issues important to FTA‘s overall public transportation program. FTA will refer violations of Federal law for which it does not have primary jurisdiction to the Federal authority having proper jurisdiction.
(c) Violations of State or Local Law or Regulations. FTA will refer violations of State or local law to the State or local authority having proper jurisdiction.
(3) FTA Determinations to Decline Protest Reviews. FTA‘s determination to decline jurisdiction over a protest does not mean that FTA approves of or agrees with the recipient‘s decision or that FTA has determined the contract is eligible for Federal participation. FTA‘s determination means only that FTA does not consider the issues presented to be sufficiently important to FTA‘s overall program that FTA considers a review to be required.
Violations of Federal law or regulation will be handled by the complaint process stated within that law or regulation. Violations of State or local law or regulations will be under the jurisdiction of State or local authorities.
7.2 Contract Claims
a. The Procurement Officer or Procurement Manager is responsible for dealing with all written claims by a contractor against BJCTA relating to a contract.
b. In the event that a claim is made against a BJCTA contract, the following steps will be performed:
1. The Procurement Officer or Procurement Manager should meet with the contractor if required or requested to gather any required information to settle the claim presented.
2. The Procurement Officer or Procurement Manager will effect an investigation into the claim as required utilizing other BJCTA staff or BJCTA secretary as needed.
3. The Procurement Officer or Procurement Manager should issue a written decision regarding any contract controversy within 10 business days after a written request for final decision, or within such longer period as may be agreed upon between the parties. The decision should state the reasons for the decision reached, and should inform the contractor of its appeal rights. This written response should be made a part of the contract file, along with any other documentation concerning the claim.
4. The Procurement Officer or Procurement Manager’s decision should be final and conclusive unless, within 5 calendar days from the receipt of the decision, the contractor mails or otherwise delivers a written appeal to the Executive Director.
5. If a written appeal is received by the Executive Director then the procedures outlined in the Appeals and Remedies section of this policy will be followed.
7.3 Solicitations or Awards in Violation of Law
In the event that the Procurement Manager, after consultation with the BJCTA Board Secretary, determines that a solicitation or award of a contract is in violation of federal, state or municipal law, or these BJCTA Procurement Policies, then the following steps will be performed:
1. Solicitation
a. If prior to bid opening or the closing date for receipt of proposals, then the Procurement Manager should cancel the solicitation or modify it to comply with the applicable law. A written notice of this action should be sent to all responsive bidders. The written determination should be made a part of the contract file.
b. If after bid opening or the closing date for receipt of proposals but prior to award of contract, the Procurement Officer or Procurement Manager should cancel the solicitation or proposed award and a written notice to that effect should be sent to the responsive bidder and should be included in the contract file.
2. Award
If after award of the contract then the following applies:
a. The Procurement Manager should make a determination as to the action of the contractor related to the violation within the solicitation or contract. This determination should be if the contractor acted in good faith or in a fraudulent manner. A written record of this determination should be made part of the contract file.
b. The Procurement Manager should determine what action concerning the contract would be in the best interests of the BJCTA. A written record of this determination should be made a part of the contract file.
c. If the contractor acted in good faith in the solicitation and award process, within the best interests of BJCTA, then the Procurement Manager should ensure that the contract is ratified and affirmed. Otherwise, the contract should be terminated and the contractor compensated for actual costs reasonably incurred under the contract, plus a reasonable profit, prior to the termination.
d. If the contractor and or sub-contractor acted fraudulently, the contract may be declared null and void or voidable if such action is in the best interests of BJCTA.
In all cases, the Procurement Manager will include all documentation and determinations as a part of the contract file. The contractor or bidders affected should be notified, in writing, by the Procurement Officer or Procurement Manager of all action taken in regard to the preceding.