Ga. Comp. R. & Regs. R. 665-2-11-.07 - Protest Procedure

This Protest Procedure ("Procedure") is the sole and exclusive administrative procedure for protests, challenges or other claims against any aspect of any procurement or procurement processes of the GTA.

(a) Filing.

1.An Interested Party is the only party that may file a Protest under this Procedure.

2.All Protests, and any subsequent pleadings, correspondence, or other communications with respect to such Protest, must be filed in writing, with a signed original and three (3) copies delivered to the Contracting Officer on a Business Day, between the hours of 9:00 a.m. and 5:00 p.m. local time, at the same address shown for filing the Solicitation Response in the Solicitation Document that is the subject of the Protest. The filing or copying of any pleadings, correspondence or other communications with respect to a Protest with any GTA official other than the appropriate Contracting Officer shall subject the Protest to summary dismissal in accordance with Rule 665-2-11-.07(e).

3.All Protests must be received by the Contracting Officer no later than 5:00 p.m. local time on the last day that such Protest may be filed with respect to a particular Solicitation Document in accordance with this Procedure. Protests may be filed only by hand delivery, U.S. mail or commercial carrier. Protests received by email or fax will not be considered.

4.Failure to timely file the Protest in accordance with Rule 665-2-11-.07(a), or any supporting documents that are required to be filed as a part of the Protest under Rule 665-2-11-.07(b)3., will result in the Protest being deemed untimely and subject to summary dismissal pursuant to Rule 665-2-11-.07(e). Protests will be date/ time stamped by the GTA, and timeliness will be determined solely by the GTA with reference to such date/time stamp.

5.Upon receipt of a Protest, the Protest Coordinator shall review the Protest for compliance with the procedures and requirements set forth within this Rule, the applicable Solicitation Document, and with the specific requirements set forth in Rule 665-2-11-.07(b). Protests that fail to comply with any mandatory item in that rule shall subject the Protest to summary dismissal in accordance with Rule 665-2-11-.07(e). Upon receipt of any subsequent pleadings, correspondence or other communications with respect to a Protest that are permitted by this Rule or requested by the Protest Decision maker from the Protestor, the Contracting Officer will forward such materials as expeditiously as possible to the appropriate Protest Decision maker for the Protest. Upon receipt of any subsequent pleadings, correspondence or other communications with respect to a Protest that are not permitted by this Procedure, Rule 665-1-2-.04, or requested by the Protest Decision maker from the Protestor, the Contracting Officer will forward such materials as expeditiously as possible to the appropriate Protest Coordinator for disposition under Rule 665-2-11-.07(e).

(b) Form of the Protest.

1.All Protests must be filed in an envelope labeled "PROTEST," which identifies the Protestor's name and address, the name of the GTA Contracting Officer, the GTA title assigned to the procurement, and the applicable solicitation or contract numbers.

2.Protests must be on the Protestor's letterhead and shall not exceed ten (10) pages in length (including all attachments and exhibits thereto that contain any written pleadings or argument, but excluding supporting documentation under Rule 665-2-11-.07(b).3). Each page shall have print on only one side of the page with margins no smaller than one inch (1"). The font size shall be no smaller than Courier 10 characters per inch, 12 point (or equivalent).

3.Any supporting documentation that is cited or specifically referenced in the Protest, whether or not it is not already in the possession of the GTA (including copies of any Solicitation Documents), must be filed simultaneously with the Protest.

4.Each Protest shall contain the following mandatory information:

(i) Protestor's name, address, telephone number, facsimile number and e-mail address.

(ii) A signed and notarized affidavit of the Protestor's chief executive officer or the Protestor's legal counsel, given under oath and expressly stating that it is given under penalty of perjury, that the contents of the Protest are true and correct and that the filing of the Protest is authorized by the Protestor's chief executive officer.

(iii) The signature of the Protestor's chief executive officer or the Protestor's legal counsel, whichever is signing the Protest for or on behalf of the Protestor, notarized separately from, and in addition to, the notarized affidavit under Rule 665-2-11-.07(e)4. (ii).

(iv) The specific title assigned by the GTA to the procurement and to the specific Solicitation Document that is the subject of the Protest, and all associated GTA solicitation or contract numbers, must be clearly shown on each page of the Protest.

(v) A specific detailed statement of all legal and factual grounds relied upon by the Protestor in filing its Protest. Any grounds not included in the Protest that the Protestor could have raised when the Protest was filed will be deemed irrevocably waive d and may not be part of, or grounds for, that or any subsequent Protest or other legal action filed by Protestor.

(vi) Information in the form of signed affidavits or supporting documentation sufficient to show that the Protestor qualifies as an Interested Party for the procurement with respect to which such Protest is filed.

(vii) Evidence that the filing of the Protest is timely along with all supporting documentation.

(viii) A specific statement of the form and nature of the relief requested by Protestor.

5.The Protestor's failure to include in its Protest all of the mandatory items specified in Rule 665-2-11-.07(b) shall subject the Protest to summary dismissal in accordance with Rule 665-2-11-.07(e).

(c) Time for Filing.

1.Protestors challenging any aspect of a particular procurement with respect to any matter or event first occurring on or before the Solicitation Response Date of a particular Solicitation Document, including, without limitation, any aspect of such particular Solicitation Document, shall file their Protest within five (5) Business Days of when the basis for the Protest is known or should have been known to the Protestor (whichever is earlier) but in no event later than the Solicitation Response Date for such Solicitation Document. Any Protest by the Protestor with respect to any matter or event first occurring on or before the Solicitation Response Date, including any aspect of the procurement process or the Solicitation Documents issued or occurring prior thereto, must be made within the time frame set forth in Rule 665-2-11-.07(c)1. or will be deemed irrevocably waived and may not be part of, or grounds for, any subsequent Protest or other legal action filed by Protestor. For purposes of this Procedure, Interested Parties shall be deemed to have knowledge of the form and contents of any Solicitation Document at the time that such Solicitation Document is first posted to the Georgia Procurement Registry website or otherwise put on public notice in accordance with the Rules of the GTA.

2.Protestors challenging any aspect of a particular procurement with respect to any matter or event first occurring after the Solicitation Response Date with respect to the particular Solicitation Document and on or prior to the Solicitation Decision Date with respect to such Solicitation Document, including the Contract Award or any other decision issued by the GTA with respect to such procurement during such period of time, shall file their Protest within five (5) Business Days of when the basis for the Protest is known or should have been known to Protestor (whichever is earlier) but in no event later than five (5) Business Days after the Solicitation Decision Date. Any Protest by the Protestor with respect to any matter or event first occurring after the Solicitation Response Date with respect to the particular Solicitation Document and on or prior to the Solicitation Decision Date with respect to such Solicitation Document, including any aspect of the procurement process occurring during such period of time in the procurement with respect to which the Protest is filed, must be made within the time frame set forth in Rule 665-2-11-.07(c)2. or will be deemed irrevocably waived and may not be part of, or grounds for, any subsequent Protest or legal action filed by Protestor.

3.Protests not filed in accordance with the deadlines set forth in Rule 665-2-11-.07(c) shall be deemed untimely and subject to summary dismissal pursuant to Rule 665-2-11-.07(e).

(d) Protest Decision maker.

1.Except as specifically set forth in Rule 665-2-11-.07(d)2. or Rule 665-2-11-.07(d)3., all Protests shall be decided by the GTA Agency Decisionmaker as the Protest Decisionmaker who is authorized by the Executive Director to resolve or rule on any Protest. The Agency Decisionmaker's actions, decisions and orders in such capacity as Protest Decisionmaker shall be deemed to be on behalf of the Executive Director and effective as though taken by the Executive Director.

2.At the sole and exclusive discretion of the Procurement Director exercised at any time prior to the appointment of a Third Party Hearing Officer or the issuance of a decision with respect to a Protest, the Procurement Director may request that the Executive Director appoint a Protest Panel to recommend a resolution or ruling on any Protest in accordance with Rule 665-2-11-.07(i)4. Upon any such appointment of a Protest Panel by the Executive Director, the Protest Panel's actions, decisions and orders in such capacity as Protest Decisionmaker shall be deemed to be on behalf of the Executive Director and effective as though taken by the Executive Director, subject, however, to Rule 665-2-11-.07(i)4. Upon the request for and appointment of a Protest Panel with respect to a particular Protest, such appointment of a Protest Panel with respect to such Protest shall be irrevocable and the Agency Decisionmaker shall not thereafter be entitled to rule singly or to request the appointment of a Third Party Hearing Officer under Rule 665-2-11-.07(d)3. with respect to such Protest.

3.At the sole and exclusive discretion of the Procurement Director exercised at any time prior to the appointment of a Protest Panel or the issuance of a decision with respect to a Protest, the Procurement Director may request that the Executive Director appoint a Third Party Hearing Officer to recommend a resolution or ruling on any Protest in accordance with Rule 665-2-11-.07(i)4. Upon such appointment of a Third Party Hearing Officer by the Executive Director, the Third Party Hearing Officer's actions, decisions and orders in such capacity as Protest Decisionmaker shall be deemed to be on behalf of the Executive Director and effective as though taken by the Executive Director, subject, however, to Rule 665-2-11-.07(i)4. Upon the request for and appointment of a Third Party Hearing Officer with respect to a particular Protest, such appointment of a Third Party Hearing Officer with respect to such Protest shall be irrevocable and the Agency Decisionmaker shall not thereafter be entitled to rule singly or to request the appointment of a Protest Panel under Rule 665-2-11-.07(d)2. with respect to such Protest.

(e) Summary Dismissal: The Protest Coordinator, at any time prior to forwarding the Protest to the Protest Decisionmaker, or the Protest Decisionmaker at any time thereafter, may, in their sole discretion, summarily dismiss any Protest failing to comply with any aspect of this Procedure or any aspect of the applicable Solicitation Documents issued by the GTA. The Protestor will be notified in writing by facsimile transmission or electronic means, with the original to follow by United States Mail, of the summary dismissal of their Protest.

(f) Determination that a Protest is a Frivolous Protest.

1.The Protest Coordinator shall review the Protest to determine whether, in the Protest Coordinator's sole discretion, the Protest meets the definition of a Frivolous Protest. If the Protest Coordinator does not make such review, or after such review either does not determine or declines to determine that the Protest is a Frivolous Protest, the Protest Decisionmaker shall render a decision on the Protest in accordance with Rule 665-2-11-.07(g).

2.If, after review, the Protest Coordinator determines that the Protest is a Frivolous Protest, the Protest Coordinator will notify the Protestor in writing by facsimile transmission or electronic means, with the original to follow by United States Mail, of such determination.

3.The Protestor shall have five (5) Business Days from the date the Protest Coordinator issues the facsimile or electronic notification under Rule 665-2-11-.07(f)2. in which to deliver to the Protest Coordinator the Protestor's written election to proceed with the Protest. Such notice of an election to proceed may be filed with the Protest Coordinator only by hand delivery, U.S. mail or commercial carrier, and notices received by email or fax will not be valid. Failure to notify the Protest Coordinator prior to 5 p.m. on the fifth (5th) Business Day in accordance with the foregoing, or, if applicable, to simultaneously file the bond required by Rule 665-2-11-.07(f)4., shall be deemed a withdrawal of the Protest. Protestor's written election to proceed with the Protest will be date/time stamped by the GTA, and timeliness will be determine d solely by the GTA with reference to such date/time stamp.

4.Any Protestor who has filed at least two (2) Protests with GTA that are determined by the Protest Coordinator or the Protest Decisionmaker to be Frivolous Protests and were not subsequently withdrawn by the Protestor shall be required by the GTA or the Protest Decisionmaker to file a bond, in accordance with this provision, as a condition precedent to any other Frivolous Protest proceeding through the provisions contained in Rule 665-2-11-.07 to a final determination. In the event a bond is required, and the Protestor decides to proceed with the Protest, the Protestor must file with the Executive Director, simultaneously with the Protestor's notice to the Protest Coordinator of its election to proceed with the Protest in accordance with Rule 665-2-11-.07(f)3., either a cash bond or a surety bond executed by the Protestor as the principal and by a surety company qualified and authorized to issue bonds and do business in the State of Georgia.

(i) The bond shall be payable to the GTA and in an amount equal to:

(I) For any Protest filed prior to Contract Award, ten percent (10%) of the Estimated Contract Value, or

(II) For any Protest filed after Contract Award, ten percent (10%) of the Contract Value.

(ii) The bond shall be for an indeterminate period to cover the duration of the Protest and conditioned to provide indemnification for the direct and consequential costs, damages and expenses arising out of the filing, including, but not limited to:

(I) Any costs, damages and expenses to the GTA from the processing of the Protest,

(II) Any costs, damages and expenses to the GTA or any Agency of delaying the Contract Award, and

(III) All costs and expenses of related litigation, including attorney's fees incurred by the GTA in connection with the Protest and any such related litigation.

5.In the event that the final decision on the Protest issued by the Protest Decisionmaker includes a finding that the Protest was a Frivolous Protest or if the Protest is denied, the GTA shall have the right to recover on the bond for the costs, damages and expenses set forth in Rule 665-2-11-.07(f)4. or the amount of the bond, whichever is less. The bonding company shall pay immediately upon receipt of written notification from the GTA of any final decision rendered by the Protest Decisionmaker that the Protest was a Frivolous Protest or that the Protest is denied or, if such decision rendered by the Protest Decisionmaker is appealed, upon receipt of written notification from the GTA of any final order or judgment of any court having jurisdiction affirming such decision. After payment in full to the GTA of all of the costs, damages and expenses set forth in Rule 665-2-11-.07(f)4., any remaining balance of the bond will be discharged, but if the bond is insufficient to discharge in full all such costs, damages and expenses, GTA shall retain the right to recover any amount not covered by the bond from the Protestor. In the event the Protest is sustained or is found not to be a Frivolous Protest, the bond shall be returned to the Protestor.

6.The Procurement Director or the Procurement Director's designee shall keep a log of all Frivolous Protests that are not withdrawn in accordance with Rule 665-2-11-.07(f)3. However, if any court of competent jurisdiction, in a final nonappealable order, overturns the Protest Decisionmaker's final determination that a Protest was a Frivolous Protest, such Protest shall not be considered a Frivolous Protest for purposes of this Rule 665-2-11-.07(f)4.

(g) Time for Decision by Protest Decisionmaker: Protests that are not either summarily dismissed or withdrawn (or deemed withdrawn) shall be forwarded by the Protest Coordinator as expeditiously as possible after the end of the review period referred to in Rule 665-2-11-.07(f)1. to the Protest Decisionmaker for a decision. The Protest Decisionmaker shall issue a decision as expeditiously as possible after the later to occur of:

1.Thirty (30) Business Days from the day the Protest is forwarded to the Protest Decisionmaker pursuant to Rule 665-2-11-.07(g), or

2.The receipt of any requested information from the Contracting Officer, the Protestor or any other party who has relevant information that the Protest Decisionmaker deems necessary in order to render its decision on the Protest.

(h) Protest Decisionmaker's Investigation.

1.The Protest Decisionmaker may request or permit submission of additional statements or documentation from the Contracting Officer, as the Protest Decisionmaker deems necessary in its sole discretion.

2.The Protest Decisionmaker may make a reasonable investigation and is authorized to request any information or documentation it deems necessary in order to render a decision on the Protest.

(i) Protest Adjudication Procedures.

1.The Protest Decisionmaker, in its sole discretion, may issue written questions to the Protestor on any issue the Protest Decisionmaker deems necessary for its consideration of the Protest. Such written questions may be issued in lieu of or in addition to a hearing. Unless specifically required or permitted by this Procedure, or otherwise specifically requested by the Protest Decisionmaker in writing to the Protestor, the Protestor may not file any written pleading, motion or other written documentation with the Contracting Officer or the Protest Decisionmaker after Protestor's filing of the initial Protest.

2.The Protest Decisionmaker, in its sole discretion, either at the Protest Decisionmaker's own instance or upon the Protestor's prior written request, may elect to conduct a hearing in connection with the Protest. Any requests for a hearing must include a brief statement demonstrating that the Protest Decisionmaker's decision will be aided by a hearing. In the event that the Protest Decisionmaker schedules a hearing, the notice of the hearing may set forth the scope of the hearing, including, but not limited to, the issues to be addressed, the length of hearing and whether documentary or testimonial evidence will be accepted. Alternatively, the Protest Decisionmaker may conduct a pre-hearing conference concerning the procedures to be followed at the hearing, what issues are under consideration and a list of witnesses who may testify. The issues and evidence considered by the Protest Decisionmaker are within the sole discretion of the Protest Decisionmaker.

3.The Protest Decisionmaker shall have the discretion to review the Protest Coordinator's determination that a Protest is a Frivolous Protest. If the Protest Coordinator has not made a determination that a Protest is a Frivolous Protest, the Protest Decisionmaker may determine that the Protest is a Frivolous Protest in accordance with this Procedure. Subject to Rule 665-2-11-.07(i)4., the Protest Decisionmaker may fashion any remedy the Protest Decisionmaker deems consistent with the procurement process and the Solicitation Documents, including without limitation,

(i) Deny the Protest in whole or in part,

(ii) Sustain the Protest in whole or in part, or

(iii) Subject to Rule 665-2-11-.07(i)4., order the Contracting Officer to take any measure consistent with the Protest Decisionmaker's remedy, including without limitation,

(I) Award the contract in accordance with the Contracting Officer's original decision,

(II) Suspend Contract Award or other Solicitation Decision and reevaluate the Solicitation Responses,

(III) Cancel the procurement or solicitation,

(IV) Amend the procurement, or

(V) Any other remedy the Protest Decisionmaker determines is necessary to protect or maintain the integrity of the GTA's procurement process.

4.The decision of the Protest Decisionmaker shall be final; provided, however, that if a Protest Panel or a Third Party Hearing Officer is the Protest Decisionmaker, the Protest Panel or Third Party Hearing Officer shall only be entitled to make a written recommendation to the Executive Director containing the Protest Panel's or Third Party Hearing Officer's proposed ruling on the Protest.

(i) The Executive Director may:

(I) Accept, modify or reject the Protest Panel or Third Party Hearing Officer's recommendation in whole or in part,

(II) Return the matter to the Protest Panel or Third Party Hearing Officer with instruction, or

(III) Make any other appropriate disposition.

(ii) The Executive Director's decision shall be deemed the final decision of the Protest Decisionmaker and within the sole discretion of the Executive Director.

(j) Stay of Procurement During Protest: The Executive Director may order a stay in the opening of a Solicitation Response or of the contract performance if the Executive Director determines, in the Executive Director's sole discretion, that a stay is in the best interest of the GTA, any affected Agency or the State of Georgia. Should the Executive Director not stay contract performance pending the resolution of any Protest to an actual Contract Award, the contract shall be awarded on a contingent basis, subject to revocation, revision or other adjustment or modification based on the final decision of the Protest Decisionmaker in such Protest.

(k) Costs: A Protestor shall not be entitled to recover any costs incurred in connection with the procurement process, the solicitation, the Protest, and/or compliance or attempted compliance with this Rule, including preparation costs or attorneys' fees.

(l) Governing Law: The laws and regulations of the State of Georgia, without application of its conflicts of laws principles, shall govern any action brought pursuant to this Procedure.

Notes

Ga. Comp. R. & Regs. R. 665-2-11-.07

O.C.G.A. Sec. 50-25-7.3.

Original Rule entitled "Protest Procedure" adopted. F. Aug. 10, 2001; eff. Aug. 30, 2001.