SOLICITATION AND AWARD PROTESTS RULE (RULE NO.004)

Transcription

1 JACKSONVILLE TRANSPORTATION AUTHORITY SOLICITATION AND AWARD PROTESTS RULE (RULE NO.004) DATE OF ADOPTION: August 27, 2009 LAST REVISED: August 27, 2009

2 I. Purpose and Scope. SOLICITATION AND AWARD PROTESTS This rule provides procedures for the resolution of protests arising from the contract solicitation or award process. Persons who wish to challenge or protest JTA contract solicitation or contract award activities must follow the requirements of this rule. Other rules may apply to specific circumstances. Protests concerning solicitations or awards shall be governed as set forth herein. II. Definitions. For purposes of this rule, the following terms mean: (a) Award means the award of a Contract in response to a Solicitation to a Contractor (or Contractors, if applicable), which shall be deemed to occur only upon the execution and delivery of a written Contract to a Contractor (or Contractors, if applicable) by JTA, and such term applies to any method of Procurement. (b) Contract means a written or other agreement between JTA and a Contractor or Contractors with respect to the provision of goods or services, which may take the form of an exchange of documents, a purchase order issued by JTA and accepted by one or more Contractors, a contract signed by JTA and one or more Contractors, or any other legally cognizable and enforceable obligation for the provision of goods and services to JTA or by JTA. The terms Agreement or Contract also include supplemental agreements, work orders and change orders with respect to any of the foregoing. (c) Contractor means any business having a Contract directly with JTA, and includes without limitation construction contractors, vendors of goods, professionals (subject to licensing requirements or otherwise) providing professional services, suppliers of tangible and intangible property of any kind or type, and providers of other services (d) Contract procurement process means Procurements by Request for Bids (RFB), Request for Proposal (RFP), or Request for Qualifications (RFQ), as each is defined herein, approval of a single source procurement, as defined herein, or other solicitation documents. (e) Decision or Intended Decision means: (1) The contents of a Solicitation, including addenda; (2) Final approval of ranking of proposers or bidders; (3) A determination that a specified Procurement can be made only from a single source; (4) Rejection of a response or all responses to a Solicitation; or 2

3 (5) Intention to award a contract as indicated by a posted solicitation tabulation or other written notice. (f) Electronic posting means the inclusion of information on the JTA s website. (g) Procurement means the buying, purchasing, renting, leasing or otherwise obtaining of any supplies, services, construction or any other item(s). It also includes all functions that pertain to the obtaining of any supplies, services, construction or any other item(s), including description of requirements, selection and solicitation of sources, and preparation and award of contracts. (h) Request for Bids means a Solicitation by JTA for a fixed price or other monetary offer for goods or services, without invoking criteria of a subjective nature. (i) Request for Qualifications (RFQ) means a solicitation for professional and other qualifications. (j) Request for Proposals (RFP) means a Solicitation in which JTA describes its needs in terms of performance standards or criteria for one or more elements of the Solicitation and respondents are requested to provide (in addition to price or economic consideration, if applicable) qualifications and experience of the respondent firm and its proposed team personnel and descriptions and specifications of the goods and services which will meet or exceed the criteria or standards specified, and in which JTA establishes the criteria it will follow in ranking responses or respondents. It is not necessary that there be subjective criteria in an RFP. (k) Single Source Procurement means commodities or contractual services available only from a single source which may be exempted from the competitive-solicitation requirements. (l) Solicitation means a Request for Bids, Request for Qualifications or Request for Proposals, or other solicitation by JTA for goods and services. III. Notice of Protest. (a) JTA shall provide notice of a Decision or Intended Decision concerning a Solicitation or Contract Award by physical posting at the JTA s administrative offices or by electronic posting. This notice shall contain the following statement: Failure to file a protest within 72 hours (for Contract Award protests) or prior to five (5) business days before the bid opening date (for protests relating to the contents of a Solicitation), or failure to post the bond or other security required under JTA s Solicitation and Award Protest Rule within the time allowed for filing a bond shall constitute a waiver of proceedings under JTA s Solicitation and Award Protest Rule. If the notice advises of the bond requirement but a bond (or authorized alternate) is not posted when required, the JTA may summarily dismiss the protest petition. (b) Any person who wishes to protest the contents of a Solicitation, including addenda, shall file with the JTA a notice of protest, in writing, no less than five (5) business days before the bid, proposal or qualifications due date. Failure to file a notice of protest shall constitute a waiver of proceedings under this rule. A notice of protest relating to the contents of 3

4 a Solicitation must be received by the JTA not less than five (5) business days prior to the bid, proposal or qualifications due date. The notice of protest must be filed with the Executive Director of JTA unless otherwise designated by the Solicitation. The time period set forth herein is not extended by service of the notice of protest by mail. (c) Any person who is adversely affected by the JTA Decision or Intended Decision concerning a Contract Award shall file with the JTA a notice of protest, in writing, within 72 hours after the posting of the notice of Decision or Intended Decision. Failure to file a notice of protest shall constitute a waiver of proceedings under this rule. The 72-hour period begins upon first posting of a Decision or Intended Decision. The notice of protest must be received by the JTA before the 72-hour period expires. The notice of protest must be filed with the Executive Director of JTA unless otherwise designated by the Solicitation. The 72-hour period is not extended by service of the notice of protest by mail. (d) The notice of protest shall be addressed to JTA; shall identify the Solicitation by number and title or any other language that will enable JTA to identify it; and shall state that the person intends to protest the contents of the Solicitation, or the Decision or Intended Decision. If a bond is required, it shall not be filed with the notice of protest, but must be filed with the formal written protest described in Section V of this rule. (e) Upon receipt of the notice of protest that has been timely filed, JTA shall stop the Solicitation or Contract Award process until the subject of the protest is resolved by operation of this Rule or by final action, unless the Executive Director sets forth in writing particular facts and circumstances which require the continuance of the Solicitation or Contract Award process without delay in order to avoid an immediate and serious danger to the public health, safety, or welfare, or other exigent circumstances, including in order to avoid a substantial loss of funding to the JTA. IV. Informal Resolution of Protest. (a) JTA shall provide an opportunity to resolve the protest by mutual agreement between the parties within ten (10) business days (subject to extension by mutual agreement) after receipt of a notice of protest. If the subject of a protest is not resolved by mutual agreement within such ten (10) business day period (as extended), and the formal written protest is timely received by JTA, an administrative hearing shall be conducted pursuant to the JTA Hearings Rule. (b) Informal discussions to attempt resolution shall be held at the offices of JTA or its general counsel, and shall be attended by the Chief of Staff or his or her designee from among other JTA Directors or senior managers as the senior JTA negotiator, and by JTA s general counsel. A recommendation from the senior JTA negotiator and general counsel for resolution shall be forwarded as promptly as practical following any such meeting to JTA s Executive Director for confirmation or direction for further discussion, and upon confirmation by the Executive Director, all parties shall be informed in writing of such resolution within ten (10) business days (or longer if extended by the parties). The informal resolution shall be deemed acceptable to all parties unless written notice is received by the JTA within five (5) business days of the date of such letter, stating that such resolution is unacceptable. 4

5 V. Formal Written Protest. (a) The formal written protest required hereunder is a petition that states with particularity the facts and law upon which the protest is based. The formal written protest shall contain the information specified in JTA s Administrative and Public Hearings Rule. If the formal written protest is filed in proper form within the 72-hour period for filing a notice of protest, the formal written protest will also constitute the notice of protest. Thereafter, all time limits relative to formal written protests apply. A formal written protest shall be filed within ten (10) business days after the date the notice of protest is filed, whether or not the parties utilize the informal resolution procedures outlined in Section IV of this rule. The formal written protest shall state with particularity the facts and law upon which the protest is based. (b) A person may not file a protest as to any Award or Solicitation for which he or she is not qualified to bid or propose or for any Award or Solicitation for which no bid or proposal was submitted. VI. Hearings. If the subject of a protest is not resolved by a mutual agreement within ten (10) business days (or such longer period as the JTA and protestor may agree) of receipt of the formal written protest, and if there is a disputed issue of material fact, JTA shall conduct a hearing in accordance with the JTA s Administrative and Public Hearings Rule. The hearing officer shall be appointed as set forth therein. VII. Time Computation. In computing any period of time prescribed or allowed under this rule, a business day is a day which is neither a Saturday, Sunday or legal holiday observed by the State of Florida. The day of the act from which the designated time period begins to run shall not be included when computing any period of time. The last day of the period shall be included unless it is a Saturday, Sunday or holiday observed by the State of Florida. A period for filing shall not be extended due to service by mail. Notice by facsimile shall be used at the risk of the protestor who shall assume any risk associated with incomplete or failed transmissions. A facsimile received after 5:00 p.m. is considered filed on the next business day. VIII. Protest to Federal Transit Administration. (a) A protestor adversely affected by a final decision of JTA governed by the belownoted circular, may submit a protest to the Federal Transit Administration (FTA) in accordance with the provisions of FTA Circular , as currently in effect as of the date of JTA s decision on the protest. (b) Under the provision of the FTA Circular, FTA will only review protests regarding the alleged failure of JTA to have written protest procedures or the alleged failure to have followed such protest procedures or the alleged failure to review a complaint or protest. (c) In accordance with the FTA Circular, such protest must be filed no later than 5 business days after the protestor knew or should have known of JTA s alleged failure listed 5

6 above. (d) Under the following conditions, JTA may proceed with the procurement in spite of a pending protest to the FTA: (i) The items to be procured are urgently required; (ii) Delivery or performance will be unduly delayed by failure to make the award promptly; or (iii) Failure to make prompt award will otherwise cause undue harm to JTA or the Federal Government. IX. Bond. (a) Any person who files an action protesting a Decision or Intended Decision shall post with the JTA, at the time of filing a formal written protest, a bond (either cash, cash equivalent, or secured by an irrevocable letter of credit) payable to the JTA in the following amounts: (i) For an action protesting a Solicitation, the bond shall be $5,000. (ii) For an action protesting a bid, proposal or qualifications rejection or Contract Award, the bond shall be equal to 1 percent of the lowest bid submitted (up to $25,000) or $5,000, whichever is greater. (b) The bond required by this section shall be conditioned upon the payment of all costs which may be adjudged against the person filing the protest in the administrative hearing in which the action is brought and any subsequent appellate court proceeding. If, after completion of the administrative hearing process and any appellate court proceedings, JTA prevails, it shall recover all costs and charges which shall be included in the final order or judgment, excluding attorney s fees. Upon payment of such costs and charges by the person filing the protest, the bond shall be returned to him or her. If the person filing the protest prevails, he or she shall recover from the JTA all costs and charges which shall be included in the final order or judgment, excluding attorney's fees. The entire amount of the bond shall be forfeited if the hearing officer determines that a protest was filed for a frivolous or improper purpose, including, but not limited to, the purpose of harassing, causing unnecessary delay, or causing needless cost for JTA or parties. (c) The bond must accompany a formal written protest filed pursuant to this rule. The bond shall be in substantially the following form: 6

7 Bond Number: Contract Number: JACKSONVILLE TRANSPORTATION AUTHORITY PROCUREMENT PROTEST BOND KNOW ALL PERSONS BY THESE PRESENTS: That we, a (mark one) [ ] corporation, [ ] partnership, [ ] proprietorship, organized and existing under the laws of the State of, and having its principal place of business at, as PRINCIPAL; and, a surety company, organized under the laws of the State of, and duly authorized to do business in the State of Florida, whose principal place of business is, as SURETY, are held and firmly bound unto the JACKSONVILLE TRANSPORTATION AUTHORITY, (JTA), as OBLIGEE, in the amount of $ for the payment of which sum we, as Principal and Surety, bind ourselves, our heirs, personal representatives, successors and assigns, jointly and severally. THIS BOND is issued under the provisions of the JTA SOLICITATION AND AWARD PROTEST RULE. The above-named Principal has initiated an administrative protest regarding the Obligee s decision or intended decision pertaining to (mark one) [ ] Bid Number [ ] JTA s request for approval of an exceptional purchase of submitted by. Said protest is conditioned upon the posting of a bond at the time of filing the formal written protest. NOW, THEREFORE, the condition of this Bond is that if the Principal, after the administrative hearing process and/or any appellate court proceedings regarding the protest, shall satisfy all costs and charges allowed by final order and/or judgment, and interest thereon, in the event the Obligee prevails, then the obligation shall be null and void; otherwise it shall remain in full force and effect. The Obligee may bring an action in a court of competent jurisdiction on this bond for the amount of such liability, including all costs and attorneys fees. Principal: By: Title: (CORPORATE SEAL) Attest: By: Surety: By: Title: (CORPORATE SEAL) Florida Resident Agent: (Note: Power of Attorney showing authority of Surety s agent or Attorney in Fact must be attached). Bonds must be countersigned by an agent licensed in Florida. A cashier s check or money order may be used in lieu of a bond. 7