Gov Purchasing
Provide an Effective Dispute Resolution Mechanism
By Michael Asner
May 19, 2005, 15:46

In the last installment we talked about ways to avoid protests through "best practices." Regardless of how solid your policies are, and how thorough your procedures, there will be disgruntled suppliers. The reasons are straightforward.

First, there are always more losers than winners, so the odds favor protests being initiated.

Second, mistakes will occur, no matter how knowledgeable or well trained a procurement officer is. Suppliers will be aggrieved, and some of them will launch protests.

Third, awarding contracts based on political reasons or on seemingly arbitrary criteria has become unacceptable. Awards based on arbitrary criteria generate protests.

While a supplier can always seek relief in the courts, there should be some simple administrative process for resolving these differences. This remedy should not involve the courts; it should be fast, inexpensive and defensible. Furthermore, the administrative approach should be able to solve the problem quietly, without attracting the harsh glare of publicity.

Procurement officials can do much to mitigate complaints. They can offer explanations or clarifications to suppliers. They can remove ambiguities and resolve conflicts and errors in the RFP documents. <p

A protest can be formally defined as a written objection by an interested party to a solicitation for the acquisition of supplies or services, or a written objection by an interested party to a proposed award or to the actual award of the related contract.

There are many reasons cited for protesting an award:

1. The purchasing official fails to comply with rules or regulations.
   
2. The purchasing officials' actions unfairly limit a supplier's opportunity to win. For example, an arbitrary requirement to have an office in Omaha, or eight years of experience.
   
3. The RFP requirements were unduly restrictive and failed to promote fair and open competition. For example, features were identified but were not necessary to achieve reasonable functionality and were available from only one supplier.
   
4. One supplier was favored by the requirements, evaluation process and criteria.

In these harsh economic times, protests will arise as suppliers compete more vigorously for fewer dollars. Shrinking budgets, more complex organizations and changing paradigms all contribute to the difficult environment in which procurement officers must work.

It would appear that there are three different approaches to dispute resolution. In the first approach, the purchasing organization is arrogant, insular or insensitive. It doesn't really want to deal with suppliers' concerns. Organizations adopting this tactic usually have no published policy about RFPs or protests. They often offer suppliers a debriefing but then indicate that almost all of the information is confidential or protected by freedom of information legislation. They do not willingly provide evidence of their own shortcomings to suppliers feeling aggrieved. In extreme cases, the RFP actually contains a phrase excluding the possibility of a debriefing!

In the second approach, the organization does want to deal with suppliers' concerns. These organizations often provide suppliers with lots of information and genuinely try to deal with complaints in a business-like manner. Where these organizations fall short is that there is no appeal from the decision of the purchasing officer, other than the courts or the politicians. This approach is differentiated from the first by the attitude of the procurement officials, and sometimes by the procedures themselves.

The final approach is based on the organization wanting to address suppliers' concerns to the satisfaction of the suppliers. These organizations provide suppliers as much information as possible. In addition, they provide the suppliers with a well-defined, publicized appeal process. These organizations have a written procedure as part of RFP policy which provides for an initial attempt to resolve disputes internally, then through an objective third party. In some of these organizations, the seriousness of this event is reflected in the policy and practice of not awarding the contract until the protest is resolved.

Excerpted from THE REQUEST FOR PROPOSAL HANDBOOK
By Michael Asner