Chapter 3.46
BID PROTEST PROCEDURES
Sections:
3.46.030 Protest authorized—Exhaustion of remedies and timeliness required.
3.46.060 Determination of protest.
3.46.080 Venue—Notice required.
3.46.090 Limited appeal of city decision to federal agency.
3.46.010 Purpose.
The purpose of this chapter is to protect the public purse, not to provide a specific type of forum for bidders, contractors, vendors and anyone who seeks to contract with the city to provide goods and services. (Ord. 2726-03 § 1, 2003)
3.46.020 Definitions.
A. “Award” shall mean a decision by the city to purchase goods or services from a particular bidder or proposer. For the purposes of this chapter, “award” includes the city’s selection of a particular proposal as most advantageous to the city.
B. “Federal agency” means any federal government agency that provides grants or funds to the city that the city will use in a procurement.
C. “Filing” shall mean physical delivery during regular city business hours to the city clerk requiring a receipt signed by a staff member of the city clerk’s office, such as United States certified first class mail, return receipt requested, or commercial document courier who obtains a receipt upon delivery. Filing does not mean or include electronic submission via the Internet or by fax.
D. “Interested party” means: (1) prior to submission of bids, proposals, or offers to the city, an actual or prospective bidder, proposer or offeror whose direct economic interest would be affected by the procurement; and (2) after submission of bids, proposals or offers to the city, an actual bidder, proposer, or offeror. “Interested party” does not include subcontractors, suppliers, or any person contracting with, or intending to contract with, an actual bidder, proposer, or offeror.
E. “Procurement” means: (1) a solicitation, invitation, or other request by the city for offers for a contract for the purchase, lease or acquisition of goods or services; and (2) an award or proposed award of such a contract. “Procurement” does not include the acquisition of any interest in real estate.
F. “Protest” means a written objection by an interested party to a procurement.
G. “Protestor” means an interested party who files a protest as provided in this chapter. (Ord. 2726-03 § 2, 2003)
3.46.030 Protest authorized—Exhaustion of remedies and timeliness required.
A. An interested party may protest a procurement only and exclusively as provided in this chapter. An interested party must exhaust the administrative remedies provided in this chapter before seeking other or additional relief in a court of law, except for temporary measures to preserve the status quo pending exhaustion of the remedies established by this chapter. An interested party who fails to exhaust the remedies provided by this chapter waives its protest.
B. Notwithstanding subsection A of this section, the city council may by resolution adopt substitute protest procedures in lieu of some or all of the procedures of this chapter for public works procurements estimated at five million dollars or more where the city council determines that substitute procedures are appropriate. If the city council does not adopt substitute protest procedures for such a public works procurement, then this chapter applies to the procurement. If the city council does adopt substitute protest procedures for a procurement, then the substitute protest procedures shall be included in the request for proposals or other initial bidding document; an interested party may protest the procurement only and exclusively as provided in the substitute protest procedures; an interested party must exhaust the administrative remedies provided in the substitute protest procedures before seeking other or additional relief in a court of law, except for temporary measures to preserve the status quo pending exhaustion of the remedies established by the substitute protest procedures; and an interested party who fails to exhaust the remedies provided by the substitute protest procedures waives its protest. (Ord. 3267-12 § 4, 2012: Ord. 2726-03 § 3, 2003)
3.46.040 Contents.
A. A protest must contain the information required by this chapter and shall be denied if it does not.
B. A protest must clearly: (1) identify itself as a protest and (2) identify the procurement protested.
C. A protest must be written and contain the following statement signed by a responsible official of the interested party: “I declare under penalty of law for perjury or falsification that the information contained in the protest is true and correct to my personal knowledge, that this protest is filed in good faith and without any intent of delaying the procurement, and that I reasonably believe the protest to be meritorious,” and such statement shall be subscribed and sworn before a notary public. A protestor must strictly comply with this requirement.
D. The protestor must state in its protest all reasons and bases in law and fact supporting the protest, including, but not limited to: (1) identification of any and all specifications, terms, requirements, conditions, or any other item or process to which the protestor objects; and (2) a complete description of the facts, circumstances and reasons, including legal reasons, why an award should or should not be made.
E. The protestor must attach to the protest all documents upon which it relies to support its protest.
F. A protestor waives any and all grounds for protest that are not clearly identified or described in the protest initially filed with the city clerk. (Ord. 2726-03 § 4, 2003)
3.46.050 Filing and deadline.
A. A protestor must strictly comply with the time limits established by this chapter. A protestor waives its protest by failing to comply strictly with the time limits established in this chapter.
B. A protest of a specification, term, requirement, condition, or any other item or process in a procurement must be filed with the city clerk within the time limits established by this subsection.
1. If the procurement is advertised and:
a. There are less than ten business days between the date the procurement is advertised and the date scheduled for submission of bids or proposals, a protest of a specification, term, requirement, condition, or any other item or process must be filed no later than three business days prior to the scheduled deadline for submission of bids or proposals.
b. There are ten or more business days between the date the procurement is advertised and the date scheduled for submission of bids or proposals, a protest of a specification, term, requirement, condition, or any other item or process must be filed no later than five business days prior to the scheduled deadline for submission of bids or proposals.
2. If the procurement is not advertised, a protest of a specification, term, requirement, condition, or any other item or process must be filed no later than three business days prior to the scheduled deadline for submission of bids or proposals.
3. If the city changes the deadline for submission of bids or proposals from the date originally scheduled in the procurement, the time limit for filing a protest shall be determined by using the latest date to which the submission of bids or proposals is changed.
C. A protest of an award or rejection of all bids or proposals must be filed with the city clerk within the time limits established by this subsection.
1. If the city provides at least three business days’ notice to bidders or proposers of its intent to award or reject all bids or proposals, any protest must be filed with the city clerk no later than the business day prior to the date of proposed award or rejection of all bids or proposals. For the purposes of this subsection, the city may notify bidders or proposers by providing them with a copy of the tabulation of the bids or proposals.
2. If the city has not provided at least three business days’ notice to bidders or proposers of its intent to award or reject all bids or proposals, any protest must be filed with the city clerk no later than three business days after award or decision to reject all bids or proposals.
D. The city may choose to proceed with the procurement and execute a contract in the absence of an injunction or restraining order. The city will notify the protestor or other interested party of the city’s intent to execute a contract if, and to the extent, required by law. (Ord. 2726-03 § 5, 2003)
3.46.060 Determination of protest.
A. The city may request information relating to the procurement or protest from any other source, including, but not limited to, other interested parties. A protestor may request copies of any such information from the city clerk. A protestor may file written comment upon such information. The city will consider such comments if, and only if, the comments are (1) received in sufficient time for the city to review and analyze them, and (2) the city has the expertise, resources, and financial ability readily available to review and analyze them.
B. If the procurement is to be made or awarded by city council action as provided under city ordinances or policies existing at the time of the procurement, city council shall decide the protest. In its sole discretion, council may designate a person or committee of the council to review the protest and recommend a decision. In the event of such designation and recommendation, council shall consider the recommendation and decide the protest. A protestor and any other interested party may appear before council or designated person or committee to comment upon the protest, but only if allowed by, and pursuant to, existing procedures for public participation or comment, and shall not include examination of witnesses, the taking of evidence, or the submission of evidence. The council’s decision shall be final and binding.
C. If the procurement is to be made without city council action, as provided under city ordinances or policies existing at the time of the procurement, the city attorney shall designate a person to decide the protest. A meeting or conference with the protestor will occur only if such designated person determines, in his or her sole discretion, that a meeting or conference with the protestor would materially assist him or her in making a decision, but such meeting shall not include examination of witnesses, the taking of evidence, or the submission of evidence. The person designated by the city attorney will issue a written decision. The decision shall be final and binding.
D. The decision will be decided based upon the protest, including documents attached to the protest in support of the protest, and any other information obtained by the city.
E. Only those issues raised by the protestor in its protest filed with the city clerk will be considered. (Ord. 2726-03 § 6, 2003)
3.46.070 Remedies.
A. A decision on the protest may include, but is not limited to, upholding or denying the protest, in whole or in part. Remedies may include rejection of one or more bids or proposals, a call for new bids or proposals, acceptance of the selected bid or proposal in the event the protest is denied, and such other relief as may be appropriate.
B. A protestor or interested party may obtain injunctive relief only. No protestor or interested party shall be entitled to damages of any kind whatsoever.
C. No contract is formed until a written contract, agreement, or memorialization has been completely executed by the city and the successful bidder, proposer, or offeror. A bid, proposal, and offer do not create any property right of any kind in a procurement or its offer related to the procurement. (Ord. 2726-03 § 7, 2003)
3.46.080 Venue—Notice required.
A. Any and all lawsuits arising out of, or relating to, a protest shall be filed in the superior court for Snohomish County, Washington, including, but not limited to, application by an interested party or protestor for temporary measures to preserve the status quo pending exhaustion of the remedies enumerated herein. If concurrent jurisdiction exists between the superior court of Snohomish County and some other court, such as the United States District Court, venue shall lie in the superior court of Snohomish County.
B. An interested party or protestor who applies to the Snohomish County superior court for temporary measures to preserve the status quo pending exhaustion of remedies granted hereunder shall give notice of such application to the city attorney so as to allow the city to appear before any commissioner or judge hearing such application. Failure to give the city such notice shall constitute a waiver of the protest. (Ord. 2726-03 § 8, 2003)
3.46.090 Limited appeal of city decision to federal agency.
A protestor may appeal the city’s decision on a protest to the federal agency: (A) if and to the extent allowed by the federal agency’s regulations then in existence, such as Federal Transit Administration Circular 4220.1D or its successor; and (B) if the procurement is funded in whole or in part by the federal agency allowing such appeal. A protestor must exhaust all administrative remedies with the city of Everett as a condition precedent to appealing the city’s decision on a protest to the federal agency. The federal agency will only review appeals that allege the city failed to follow the city’s protest procedures. Any such appeal to the federal agency must be in writing and received by the appropriate federal agency’s regional or headquarters office no later than five business days following a final decision rendered by the city of Everett. A copy of any such appeal to the federal agency must be promptly filed with the city clerk. (Ord. 2726-03 § 9, 2003)