6.5. Step 4 – Supplier Participates in Protest Process

An interested supplier may file a written protest challenging a state entity’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 state entity’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 a state entity’s evaluation was improper, a protester cannot merely suggest alternative methodologies or conclusions; it is required to establish that the state entity's actual evaluation lacked a reasonable basis.
• Governmental officials and state entities 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 the procuring entity 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.
• The manner and depth of a state entity’s price analysis is a matter within the sound exercise of the state entity’s discretion. Interested suppliers may not challenge the realism of a potential awardee’s price, such as arguing a supplier’s price is so low that it reflects a lack of understanding of the state entity’s requirements or creates a risk of unsuccessful performance.
• A state entity maintains discretion to determine its needs and the best method to accommodate them and the responsibility for drafting proper specifications that reflect the state's needs is the procuring entity’s. However, those needs must be specified in a manner designed to achieve full and open competition. Where a protester alleges that performance is impossible, DOAS will not substitute its judgment for that of the procuring entity or sustain the protest in the absence of clear and convincing evidence that the specifications are in fact impossible to meet or unduly restrict competition. Where a requirement reflects a procuring entity’s minimum needs, the fact that the protester will be unable to meet the requirement does not establish that the specifications are impossible to meet or that the specifications unduly restrict competition.
• State entities who provide education-related services will be provided deference in instances where the state entity determines that specific brand-name equipment is required for educational purposes; however, such determination by the state entity must be documented and reasonably related to a need or desired outcome.
• A state entity may waive compliance with a material solicitation requirement in awarding a contract if the award will meet the state entity’s actual needs without prejudice to other suppliers. Competitive prejudice from such a waiver exists only where the requirement was not similarly waived for the protester, or where the protester would be able to alter its submission to its competitive advantage if given the opportunity to respond to the relaxed term. In cases where the protester argues that a state entity improperly waived a certain requirement, prejudice does not mean that, had the state entity failed to waive the requirement, the awardee would have been unsuccessful. Rather, the pertinent question is whether the protester would have submitted a different offer that would have had a reasonable possibility of being selected for award or that it could have done something else to improve its chances for award had it known that the state entity would waive the requirement.
• If a state entity’s improper deviation from the solicitation equally affects all suppliers, then it causes prejudice to none. In the event that the deviation restricted competition in a material manner, DOAS may determine that such deviation is impermissible.
• Patent ambiguities must be challenged prior to close of the solicitation. A supplier who chooses to compete under a patently ambiguous solicitation does so at its own peril and cannot later complain when the state entity proceeds in a manner inconsistent with one of the possible interpretations.
• DOAS will consider protests regarding Notices of Intent to Award contracts procured through solicitations conducted by other states, political subdivisions, or cooperative purchasing organizations, as permitted under Section 1.3.4.4. of the GPM, reviewing factors such as the market research conducted by the State Entity and operational considerations of the State Entity; information submitted by the protesting party, including whether the protesting party is willing to offer a value comparable to that offered under the cooperative contract identified by the State Entity; and background information regarding the conduct of the cooperative procurement that the State Entity is seeking to adopt.