4.8 Debrief and Protest

4.8.1 Debrief

4.8.1.1 Debrief for Goods, Services and Construction (HRS 103D)

For the competitive sealed proposals (HRS §103D-303 & HAR §3-122-60) and procurement of professional services (HRS §103D-304 & HAR §3-122-70) methods of procurement, non-selected offerors may request a debrief from the purchasing agency. To request a debrief, the non-selected offeror must submit a written request for a debriefing within three (3) working days after posting the public notice of award. The debriefing should be held by the Procurement Officer or designee, within seven (7) working days. If multiple requests have been received, the Procurement Officer or designee may determine whether or not to conduct individual or combined debriefings.

The purpose of the debrief is to inform the non-selected offerors of the basis for the source selection decision and contract award. The debrief is a forum to discuss the unsuccessful offeror’s proposal only. It is not a forum to discuss the submissions of other offerors. It is a best practice to maintain a list of all attendees along with a summary of the debriefing in the contract file.

Procurement officers should ensure best judgement is used when debriefings are conducted to ensure the regulatory purpose of the debrief is met. The following are topics that are not appropriate for a debrief:

  • Point-by-point comparisons of the debriefed offeror’s proposal with those of other offerors
  • Any information prohibited from disclosure by law (HRS chapter 92F, Uniform Information Practices Act), including trade secrets, or privileged or confidential commercial or manufacturing information

4.8.1.2 Informal Request For Explanation for Health and Human Services (HRS 103F)

An informal request for explanation for award/non-award of a contract can be made for both a restrictive or competitive purchase of services under HRS 103F. An informal request made under this section shall not extend the time period to submit a protest in any way.

The purchasing agency may respond as practicable to informal requests for explanations but the failure to respond to an informal request shall not be grounds for a formal protest or objection.

4.8.2 Protests

4.8.2.1 Protest for Goods, Services and Construction (HRS 103D)

In accordance with HRS 103D Part VII & HAR 3-126 Subchapter 1, any actual or prospective bidder, offeror, or contractor who is aggrieved in connection with the solicitation or award of a contract may protest to the CPO or a designee as specified in the solicitation. A protest must be submitted in writing within five (5) working days as indicated below.

  • Solicitation:
    • Prior to the deadline for bid or proposal submission.  No protest based upon the content of the solicitation shall be considered unless it is submitted in writing prior to the date set for the receipt of bids/offers.
  • Award:
    • After the aggrieved entity knows or should have known of the facts giving rise to their protest.
    • After posting the notice of award. (A protest of an award or proposed award shall be submitted in writing within five (5) working days after the posting of award of the contract.)
    • After debrief meeting with the non-selected vendor. (After receipt of a timely request for debrief, the non-selected vendor is allowed five (5) working days after the debrief meeting to submit their written protest.)

The protest must contain, at a minimum, the following:

  • The name and address of the protestor,
  • Appropriate identification of the solicitation,
  • A statement of reasons for the protest, and
  • Supporting exhibits, evidence, or documents to substantiate any claims unless not available within the filing time in which case the expected availability date shall be indicated.

When a protest is received no further action can be taken until the protest has been resolved, unless the CPO makes a written determination, after consulting with the HOPA, that the award of the contract is necessary to protect the substantial interests of the State. The protest and the procurement file must be provided to the CPO, or designee, for review. The CPO, or designee as specified in the solicitation must review the protest and all relevant information and shall render a final decision on the protest. The final decision must be in writing and shall contain, at a minimum, the following information:

  • A statement of the action to be taken or resolution to the protest; and
  • A statement that the decision is final and conclusive.

Once a final decision has been reached, the protestor must be informed as to whether the protest was denied or sustained.

If the protest is denied, the party protesting shall be informed of the final decision and the right to request an administrative hearing if they disagree with the final decision in accordance with HAR 3-126 Subchapter 5. After consultation with the respective attorney general or corporation counsel, as applicable, if the protest is sustained, the following are potential remedies based on when the protest is made:

  • PRIOR TO AWARD: If the protest is sustained prior to award, and bid responses have not yet been received, the purchasing agency may amend the solicitation to address the protested issue. If amendment is not possible, or bids have already been received, then the purchasing agency will be required to cancel the solicitation.
  • AFTER AWARD: If the protest is sustained after award of the contract, the CPO may:
    • Ratify and affirm the contract, if the violation can be waived and does not impact the evaluation ranking or eventual contract award;
    • Terminate the contract, if the violation cannot be waived, performance has not begun, and if there is time for resoliciting bids or offers OR if a violation of law occurred; or,
    • Modify the contract, if the violation cannot be waived but where performance has begun. Termination is preferred, but the State must consider various factors in determining whether to terminate or modify based on the best interests of the state.  
    • Award the protestor the reasonable costs incurred in connection with the solicitation, including bid preparation costs other than attorneys’ fees, when the protestor should have been but was not awarded the contract.

Pursuant to HRS §103D-701.5, information on all protests shall be submitted to the State Procurement Office on form SPO-043.

4.8.2.2 Protest for Health and Human Services (HRS 103F)

For the Competitive and Restrictive Purchase of Services methods of procurement, allowable protests under HAR §3-148-103 are limited to:

  • Purchasing agency failure to follow HRS Chapter 103F;
  • Purchasing agency failure to follow Hawaii Administrative Rules for HRS Chapter 103F; or
  • In the case of competitive method of procurement, any failure to follow any procedure, requirement or evaluation criterion in a request for proposals issued by a purchasing agency.
4.8.2.2.1 NOTICE OF Protest

For Competitive Purchase of Services, the Notice of Protest shall be submitted in writing within five (5) working days of the postmark of the notice of findings and decision, or notice of rejection. For Restrictive Procurement of Services, the Notice of Protest must be submitted in writing by the deadline stipulated in the public notice.

The Notice of Protest shall be submitted by U.S. mail or hand delivered and contain the name and address of the applicant, appropriate identification of the solicitation, a statement of reasons for the protest, and evidence regarding the protest. Notices of protest submitted by hand-delivery are deemed to have been submitted when actually received, and protests submitted by United States mail are deemed to have been submitted on the date they are post-marked rather than the date they are actually received.

When a Notice of Protest is received no further action or award can be made until the protest has been settled or resolved, unless the CPO makes a written determination, after consulting with the HOPA, that the award of the contract is necessary to protect the health, safety or welfare of a person from an imminent and serious threat.

4.8.2.2.2 Settlement and Scheduling Conference

Within three (3) working days of receiving a notice of protest, the HOPA or designee shall organize and conduct a settlement and scheduling conference with the protestor and the Procurement Officer in charge of the protested award. The settlement and scheduling conference may be conducted face to face, by telephone conference, or other electronic communications medium. At a minimum, the conference must address the following topics:

  1. Whether the protest can be resolved by mutual agreement, without submitting the matter to the HOPA for decision; and
  2. Whether there will be any requests for clarification and how much time the parties will need to make and respond to such requests.

If the protest cannot be resolved by mutual agreement the HOPA or designee shall issue a Scheduling Order (form SPOH-803) for the Executive Branch setting the deadlines for the following:

  1. Requests for clarification (form SPOH-804) and responses (form SPOH-805) if any;
  2. Submission of protest;
  3. Submission of the purchasing agency’s response to the protest (form SPOH-807);
  4. Submission of the protestor’s reply to the purchasing agency’s response (form SPOH-808); and
  5. Issuance of a written decision by the head of the purchasing agency.

To the extent practicable, the submission of protests, responses, requests for clarification, and replies should be completed within ten (10) working days.  Subsequently, if applicable, the written decision by the HOPA shall be issued within five (5) working days, unless extended in writing.

4.8.2.2.3 Formal Protest

If the applicant determines there is need to continue the protest process, the applicant shall submit a formal written protest (form SPOH-806) to the HOPA and the Procurement Officer of the purchasing agency by the date provided in the Scheduling Order. Protests shall be hand-delivered or sent by U.S. mail.  Upon receipt of the formal protest the purchasing agency shall respond to the protest (form SPOH-807) by the date provided in the Scheduling Order. An applicant can then choose to reply, if necessary, (form SPOH-808), submitting the reply to the HOPA by the date provided in the Scheduling Order.

The HOPA will then review all documentation available and come to a decision regarding the protest. Refer to HAR Chapter 3-148 for form, contents, and submission requirements for protests, responses, and decision by the HOPA.

Protests shall be settled by mutual agreement or resolved only by the following methods, singularly or in any combination:

  1. Amend or cancel the RFP
  2. Terminate the awarded contract
  3. Re-open the evaluation process or commence a new procurement
  4. Declare the contract null and void from the time of its award
  5. Affirm the purchasing agency’s contract award decision
  6. Dismiss the protestor’s protest
4.8.2.2.4 Request for Reconsideration

After receipt of the HOPA’s decision regarding the protest, the applicant may submit a Request for Reconsideration (form SPOH-810) to the CPO within five (5) working days after the receipt of the HOPA’s decision. The CPO will review all information and make a final decision within fifteen (15) calendar days of the receipt of the request for reconsideration, unless the CPO determines that an extension to a certain date is necessary and gives written notice of the extended deadline to the parties.

Every decision issued in resolution of a protest shall be in writing, and at a minimum, shall contain the following:

  • The decision of the Chief Procurement Officer to uphold the decision of the HOPA, or to re-open the protest and award an appropriate remedy; and
  • A detailed statement of the reason for the decision, including factual findings.

Copies of the decision shall be submitted to the protestor, the Procurement Officer in charge of the protested procurement and the HOPA.

image_print