NIGP North Shreveport, La February 9, 2017

Transcription

1 NIGP North Shreveport, La February 9, 2017

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3 Who may file a Protest and to Whom Shall it be Addressed? Any person who is aggrieved in connection with the solicitation or award of a contract issued by the applicable chief procurement officer shall protest to the chief procurement officer. La. R.S. 39:1671(A). LAC 34.V.3101 defines Aggrieved person as: A person who files a written protest in connection with the solicitation or award or the issuance of a written notice of intent to award contract under the Louisiana Procurement Code and has or may have a pecuniary or other property interest in the award of the contract.

4 Protests: Shall be in writing; Shall be addressed to the chief procurement officer; and Shall contain a detailed explanation of what is being protested and why.

5 There Are Two Types of Protests That May Be Filed: 1) Protests with Respect to the Solicitation 2) Protests with Respect to the Award of the Contract

6 Louisiana Revised Statutes 39:1671(A) provides: Protests with respect to the solicitation shall be submitted in writing at least two days prior to the opening of bids on all matters except housing of state agencies, their personnel, operations, equipment, or activities pursuant to R.S. 39:1643 for which such protest shall be submitted at least ten days prior to the opening of bids. The mandatory language of the statute requires protests submitted any time after two days prior to the opening of bids to be considered untimely and any such protests shall not be entertained.

7 Unduly restrictive specifications/proprietary language that limits the source(s) or vendors who can comply with the specifications as written, thereby unnecessarily eliminating or restricting competition on items that would be capable of satisfying the intended need. Ex: An agency needs a printer but uses specs that only one vendor can provide. License requirements Ex: An agency requires a particular license that the vendor does not think is required for the scope of work of the solicitation. Note: If a vendor believes that a contractor s license is improperly required or the incorrect classification has been specified, an interested person should, in addition to protesting the specifications, object by sending a certified letter to both the La. Contractor s Licensing Board and the awarding authority at least ten working days prior to the date on which bids are to be opened. La. R.S. 37:2163(D)

8 Louisiana Revised Statutes 39:1671(A) provides: Protests with respect to the solicitation shall be submitted in writing within fourteen days after contract award. Any protests received after the statutory 14 day window shall be considered untimely and shall not be entertained.

9 Bidder or proposer s bid or proposal disqualified Improper Award Aggrieved party feels that the award was made to a vendor whose bid or proposal did not meet the specifications. Evaluation of proposal Aggrieved party believes it should have gotten more points on the evaluation of an RFP proposal response. Note: This is very subjective and agencies are afforded a great deal of discretion when it comes to the scoring and evaluation of RFP proposals. The standard of review to be used when reviewing the findings of an administrative agency, the test for determining whether an action was arbitrary or capricious is whether the action was taken without reason. See Catamaran PBM of Maryland, Inc. v. State Office of Group Benefits (174 So. 3d 683).

10 Louisiana Revised Statutes 39:1671(B) provides: The chief procurement officer or his designee shall have authority, prior to the commencement of an action in court concerning the controversy, to settle and resolve a protest of an aggrieved person concerning the solicitation or award of a contract. This authority shall be exercised in accordance with regulations.

11 Louisiana Revised Statutes 39:1671(F) provides: In the event of a timely protest, the state shall not proceed further with the solicitation or the awarding of the contract unless the chief procurement officer makes a written determination that awarding the contract is necessary without delay to protect the substantial interests of the state. NOTE: In the event of a timely protest with regard to specs, the bids received must be impounded and cannot be opened until the protest has been resolved.

12 In accordance with La. R.S. 39:1671(F), everything dealing with the protested solicitation or contract award shall cease until the protest has been resolved. This includes contract negotiations. In the event of a timely protest with regard to the solicitation, the bids or proposals received must be impounded and cannot be opened until the protest has been resolved. Many times, a timely protest with regard to the solicitation will cause the bid opening date to be suspended. OSP sends out a letter to the protesting party acknowledging receipt of protest as well as a letter staying the award or suspending the bid opening date.

13 No one at either the agency level or OSP discusses a protest with any vendor while a protest is under review. No opinions shall be given to anyone concerning the protest while it is under review.

14 Louisiana Revised Statutes 39:1671(C) provides that: If the protest is not resolved by mutual agreement, the chief procurement officer or his designee shall, within 14 days, issue a decision in writing (the 14 days can be extended if done in writing). The decision shall: (1) State the reasons for the action taken (2) Inform the protestant of its right to administrative and judicial review as provided for by law Protest Decisions always should include the language below or something similar: The decision may be appealed to the Commissioner of Administration within seven (7) days of receipt of this decision in accordance with La. R.S. 39:1683. Additionally, should a timely appeal of this be made to the Commissioner of Administration and an unfavorable decision received, La. R.S. 39:1683(E), La. R.S. 39:1691, and La. R.S. 39:1692 provide for an appeal to the 19 th Judicial District Court to the person adversely affected by the Commissioner of Administration s decision.

15 Pursuant to La. R.S. 39:1671(D), a copy of the decision shall be mailed or otherwise furnished immediately to protestant and any other party intervening.

16 The protest decision shall be final and conclusive unless one of the following applies: 1) The decision is fraudulent; or 2) The person adversely affected by the decision has timely appealed administratively to the Commissioner in accordance with La. R.S. 39:1683

17 Louisiana Revised Statutes 39:1683 provides the procedure for appealing a protest decision to the Commissioner of Administration. Time limitation on filing appeals aggrieved person shall file an appeal with the Commissioner of Administration within seven days of receipt of protest decision. The Commissioner of Administration shall make a decision within fourteen days. A copy of the decision must be furnished immediately to protestant or any other party intervening. The Commissioner s decision is final and conclusive unless: 1) decision is fraudulent; or 2) the decision is timely appealed to the 19 th JDC in accordance with La. R.S. 39:1691. Must be appealed to the 19 th JDC within 14 days after receipt of the decision of the commissioner (La. R.S. 39:1692(A)).

18 Louisiana Revised Statutes 39:1671(G) provides: In addition to any other relief, when the protest is administratively or judicially sustained and the protesting bidder or proposer should have been awarded the contract but is not, the protesting bidder or proposer shall be entitled to the reasonable costs incurred in connection with the solicitation, including bid or proposal preparation costs other than attorney s fees provided that any administrative determination of such costs shall be subject to the written concurrence of the attorney general.

19 The chief procurement officer is authorized to promulgate regulations relative to protests, in accordance with APA. All regulations promulgated can be found in the Louisiana Administrative Code.

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21 Two separate statutes govern the two distinct contract controversies: 1) La. R.S. 39: applies to a claim by or controversy between the state and a contractor arising out of a contract for professional, personal, consulting, or social services. 2) La. R.S. 39:1673 provides the authority to resolve contract and breach of contract controversies other than professional, personal, consulting and social service contracts, e.g. contracts for the procurement of commodities, labor and materials, and operational services.

22 La. R.S. 39: If the claim or controversy is not resolved by mutual agreement, the Commissioner of Administration, or his designee, shall promptly issue a decision in writing. Copy of decision shall be furnished to the contractor, and: 1) Shall state the reasons for the action taken; and 2) Shall inform the contractor of his right to judicial relief The decision shall be final and conclusive unless fraudulent or unless the contractor institutes suit in the 19 th JDC If the COA or his designee does not issue a written decision within 120 days after written request for a final decision, or within such longer period as may be established in writing by the parties to the contract, the contractor may proceed as if an adverse decision had been received. Note: It is very important to extend deadlines in writing.

23 The Nineteenth Judicial District Court, subject to appeal or review by the First Circuit Court of Appeal or by the supreme court, as otherwise permitted in civil cases by law and the state constitution, shall have jurisdiction over any claims arising out of a request for proposal or award of a contract, any controversies involving the state, or any other matters in connection with a petition for review of a decision made pursuant to this Chapter, following the exhaustion of administrative remedies as provided by law or regulation.

24 Applies to controversies between the state and a contractor which arise under or by virtue of a contract between them Includes controversies based on breach of contract, mistake, misrepresentation, or other cause for contract modification of rescission Contractor shall file its complaint with the chief procurement officer, who is authorized, prior to the commencement of an action in court concerning the controversy, to settle and resolve the controversy, with the approval of the Attorney General. If claim or controversy is not resolved by mutual agreement, chief procurement officer or his designee shall promptly issue the decision in writing.

25 The decision shall be immediately furnished to the contractor and shall: 1) State the reasons for the action taken; and 2) Inform the contractor of its right to administrative and judicial review as provided by law The decision shall be final and conclusive unless: 1) The decision is fraudulent; or 2) The contractor has timely appealed administratively to the commissioner in accordance with La. R.S. 39:1685 If the chief procurement officer or his designee fails to issue a written decision within 60 days after written request for a final decision, or within such longer period as may be agreed upon by the parties, the contractor may proceed as if an adverse decision had been received.

26 Louisiana Revised Statutes 39:1685 applies to a review by the commissioner of a decision rendered by the chief procurement officer or his designee pursuant to La. R.S. 39:1673. Aggrieved contractor shall file its appeal with the commissioner within 14 days of the receipt of the determination made by the chief procurement officer or his designee The commissioner shall decide the contract or breach of contract controversy within 14 days and the decision must be immediately furnished to the contractor The decision of the commissioner is final and conclusive unless: 1) The decision is fraudulent; or 2) The contractor has timely appealed the decision to the court in accordance with R.S. 39:1691(C). Must be within 60 days of receipt of the decision of the commissioner (La. R.S. 39:1692(C)).

27 The Nineteenth Judicial District Court shall have exclusive venue over: Solicitation and award of contracts - any action between the state and a bidder, offerer, or contractor, prospective or actual, to determine whether a solicitation or award of a contract is in accordance with the constitution, statutes, regulations, and the terms and conditions of the solicitation. (Applies to all actions, whether for monetary damages or for declaratory, injunctive or other equitable relief.) Actions under contracts or for breach of contract any action between the state and a contractor who contracts with the state, for any cause of action which arises under or by virtue of the contract, whether the action is on the contract or for a breach of the contract or whether the action is for declaratory, injunctive, or other equitable relief. Appellate Venue Lies with the 1 st Circuit Court of Appeal and the Supreme Court of Louisiana: Any party aggrieved by a final judgment or interlocutory order or ruling of the Nineteenth Judicial District Court may appeal or seek review thereof, to the First Circuit Court of Appeal or the Supreme Court of Louisiana, as otherwise permitted in civil cases by law and the constitution.

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29 Two statutes provide for the approval to pay a vendor where either no contract existed or a contract was entered into in violation of the procurement code. The two applicable statutes are: La. R.S. 39: Applies to PPCS Contracts La. R.S. 39:1678 Applies to Non-PPCS Contracts

30 In any contract situation where an agency or vendor seeks or requests: (1) permission to pay (or receive payment) outside of a contract s terms and conditions; (2) permission to pay/proceed (or receive payment) where no legally recognized contract exists; (3) permission to pay/proceed when the agency did not have proper approval from OSP and entered into a contract to procure goods or services; (4) to address any other contractual relief controlled by R.S. 39:

31 All requests for permission to pay pursuant to La. R.S. 39: and La. R.S. 39:1678 should be submitted directly to the State Procurement Director for initial review/handling. The preferred method to receive any matter covered herein is by electronic transmission. All requests and exhibits should be ed to the State Procurement Director:

32 Matters submitted by agencies should include, where applicable: 1. A letter or memorandum explaining the circumstances and what process or procedures were followed (or not followed) and why 2. What measures have been implemented to prevent recurrence 3. Whether in the agency s opinion the vendor acted in good faith or has reasonable grounds to proceed 4. That the vendor is unwilling to accept the return of the goods (if applicable), or that the goods or services have already been used or provided 5. Whether sufficient funds are in the budget to cover the expense (If it is a PPCS contract at issue, a BA-22 is required to be submitted). 6. A copy of the order, invoice, contract, solicitation or any other documentation applicable 7. The vendor's or contractor s representative (name and title) who has the legal authority to execute a settlement on behalf of the company 8. Agency contact information

33 Requests for Permission to Pay Pursuant to 39: (PPCS Contracts) require the approval of the Attorney General s Office. Requests for Permission to Pay Pursuant to 39:1678 require the approval of the Commissioner of Administration Note: There is no time frame within which approvals must be granted and not all requests for permission to pay are granted.