ART - Recent State and Local Procurement Decisions 2010

The document is a summary of selected state and local procurement decisions over the past year. It discusses various issues related to bid protests, responsiveness of proposals, challenge to evaluations, cooperative procurement, liability allocation, standards of review, and the use of federal law in resolving procurement issues. The document highlights the issue of standing in bid protests and appeals, stating that a taxpayer may have standing to challenge a procurement award even if they are not a bidder. However, in Kentucky, a disappointed bidder has no standing to challenge an award unless they can show fraud, collusion, or dishonesty. The document also mentions that damages remedies are often unavailable in bid protests, and injunctive relief must be sought early in order to obtain meaningful relief. The document then discusses the concept of "responsiveness" in competitive bidding. It states that in traditional competitive bidding, proposals that vary substantially from the advertised specifications are considered non-responsive. However, in design-build contracts where specifications are not fully detailed, the agency has discretion to determine responsiveness. The document also mentions that complex requests for proposals (RFPs) may involve the opportunity to clarify, discuss, and revise proposals, so strict application of responsiveness rules may not always be warranted. Next, the document addresses issues with competitive selection processes. It mentions that under Louisiana law, the relative importance of price and other evaluation factors must be indicated in a request for proposals, but numerical weighting of subfactors does not need to be disclosed. It also states that RFP requirements generally must be met at the time of proposal submission, and that county commissioners in Ohio have discretion to consider factors other than price in selecting the "best bidder" for public works projects. The document also discusses the concept of the competitive range in an RFP, which is defined as the offers reasonably susceptible of being selected for award. It states that the agency properly exercised discretion in determining the competitive range when a protester did not address a major RFP criteria and could not make up the evaluation deficiency between them and three other higher-rated offerors. Finally, the document mentions post-award revisions to contract terms and conditions, stating that they can change the basis on which the competition was based. It also mentions that an agency has the discretion to cancel an RFP, although rebidding can have certain dangers, such as competitors gaining insight into each other's bidding strategies. Additionally, the document highlights a case where the RFP was initially evaluated, but ultimately canceled, even though the appellant had the highest scores. This demonstrates the complex landscape of procurement decisions and the various factors that can influence the outcome.