Bid Protest Procedures

An interested supplier may file a written protest challenging Douglas County’s compliance with applicable procurement procedures subject to the interested supplier’s compliance with the provisions of this section and subsections. An “interested supplier” is defined as an actual or prospective bidder or offeror with a direct economic interest in the procurement. In challenges relating to the evaluation of bids and proposals and the award of contracts, this generally means a bidder or offeror that would potentially be in line for award if the protest were sustained. There is no such thing as a perfect procurement. Thus, a protestor must show prejudice, not mere error, for not every error compels the rejection of an award. Rather, it is the significance of errors in the procurement process that determines whether the overturning of an award is appropriate, and it is the protestor who bears the burden of proving error in the procurement process sufficient to justify relief. Protests must demonstrate a reasonable possibility of competitive prejudice; in effect, but for the County’s actions, the protesting party would have had a substantial chance of receiving an award. The presence of multiple nonmaterial issues in a solicitation or award does not constitute a material issue unless the interested party can establish those nonmaterial issues together would prejudice the outcome of the procurement. Protests will be resolved in accordance with the following subsections.

The following general principles shall apply in the review of protests:

• The standard for reviewing the evaluation of proposals is one of deference to any reasonable judgment of the evaluation team.
• A protesting party’s simple disagreement with the evaluation team provides no basis for reversing the evaluation team’s allocation of points.
• In order to demonstrate that the evaluation was improper, a protester cannot merely suggest alternative methodologies or conclusions; it is required to establish that the County’s evaluation lacked a reasonable basis.
• Douglas County’s employees are presumed to act in good faith, and a protester’s contention that procurement officials, including but not limited to procurement personnel and evaluation team members, are motivated by bias or bad faith will not be considered unless supported by convincing proof.
• The composition of an evaluation team is a matter in which procurement maintains great discretion. The qualifications or the composition of an evaluation team may not be questioned unless the protester provides convincing proof of bad faith, conflict of interest, or actual bias.

Protests of Solicitation (Pre-Award)

10.2.1.    All protests related to the specifications, amendments, or issuance of a solicitation, irrespective of the method of procurement, must be received no later than five (5) days prior to the scheduled date for receipt of responses/solicitation close. Protests received after the five (5) business day deadline will not be considered.

10.2.2.     In the event the protest of specifications, amendments, or issuance is denied, and the protestor wishes to continue in the solicitation process, they must still submit a response prior to the close of the solicitation provided in the announcement.

Protests of Contract Award (Post Award)

10.3.1.    All protests related to the award of a contract resulting from a competitive solicitation process must be submitted no later than five (5) business days after the Notice of Intent to Award has been issued by Douglas County. Protests received after the five (5) business day deadline will not be considered. 

10.3.2.    The Procurement Department may move forward with the contract award process if no protest is received within the five (5) business day period.

10.3.3.    During the five (5) business day period, solicitation information such as the final evaluator score sheets (individual evaluator names to be redacted), are subject to public disclosure. 

Protest Process 

10.4.1.    In the event of a timely protest, the Director of Procurement shall stay the solicitation or contract award until a final decision can be rendered. Notification of the receipt of a timely Protest of Solicitation will be published on the e-procurement profile for the solicitation. Notice of the receipt of a timely Protest of Contract Award will be issued to all bidders/proposers under consideration for award. 

10.4.2.    Upon receipt of a timely protest, the Director of Procurement will issue a determination in writing within ten (10) business days. 

10.4.3.    The Director of Procurement may, after providing written justification to the County Administration to be included in the procurement file, make the determination that an award of the contract is necessary to protect the substantial interests of Douglas County. The award of a contract shall in no way compromise the protestors right to the protest procedures contained herein. 

10.4.4.    If the protestor disagrees with the decision of the Director of Procurement, the protestor may submit a written Notice of Appeal to the County Administrator requesting a review of the determination. 

Appeal Process 

10.5.1.    If the protestor wishes to appeal the decision of the Director of Procurement, the protestor must submit, within five (5) business days from receipt of the Director’s decision, a written appeal to the County Administrator.  

10.5.2.    The written appeal must contain the information required in section 10.1 of this policy and must include the legal or factual grounds for appeal. 

10.5.3.    Within five (5) business days of receipt of the protest appeal, the County Administrator will notify the protestor of the method of review of the decision of the Director of Procurement. The decision of the Director of Procurement may be reviewed using one or more of the following methods, as determined by the County Administrator: 

10.5.3.1.    Independent review by the County Administrator; 

10.5.3.2.    Convening of a Protest Appeals Committee consisting of Douglas County Executive leadership; and/or 

10.5.3.3.    Third-party review by one or more individuals not affiliated with Douglas County with documented expertise in public procurement or procurement/contract law. 

10.5.4.    The County Administrator will issue a final determination of appeal within fifteen (15) days of receipt of a timely appeal. 

10.5.5.    The determination of the County Administrator will be final and there shall be no right to further administrative remedy of the protest. 

Conflicts of Interest 

All personnel outside of the Procurement Department who may be involved in a protest or protest appeal must certify that they have no conflict of interest with the protest being heard.

It is the responsibility of DOUGLAS COUNTY MULTI-MODAL TRANSPORTATION SERVICES DIVISION to settle contract issues and disputes. DOUGLAS COUNTY MULTI-MODAL TRANSPORTATION SERVICES DIVISION is committed to using good sound administrative practices and business judgments, as well as professional ethics. Reviews of protests by FTA will be limited to alleged failure by DOUGLAS COUNTY MULTI-MODAL TRANSPORTATION SERVICES DIVISION to have followed proper protest procedures, or its failure to review a complaint or protest. Protesters dissatisfied with DOUGLAS COUNTY MULTI-MODAL TRANSPORTATION SERVICES DIVISION’s final decision may appeal to FTA regional or Headquarters Office within five (5) working days of the date the protester knew or should have known of the violation. 

Douglas County is required to notify FTA when it receives a third party contract protest, and to keep FTA informed of the status of the protest. The information that Douglas County should provide FTA with regarding a protest is listed in FTA circular C 4220.1F.

FTA officials to notify.  When a recipient denies a bid protest, and especially if an appeal to FTA is likely to occur, FTA expects the recipient to inform the FTA regional administrator for the region administering a regional project, or the FTA associate administrator for the program office administering a headquarters project directly. FTA also encourages the recipient to keep its FTA project manager informed about protests with which it is involved. In particular, Douglas County should contact its project manage about any unusual activity.

Access to Information. FTA expects any recipient, including Douglas County, to disclose information about any third party procurement protest to FTA upon request. FTA reserves the right to require the recipient to provide copies of a particular protest or all protests, and any or all related supporting documents as FTA may determine necessary.