When a transit agency goes out to bid, it’s a chance for them to improve services by getting new equipment, new professional leadership and new vision on how the system will look and operate.
But when a bid closes on a request for proposal (RFP) and a winner is selected, it can sometimes lead to concerns or ire from losing bidders, eventually leading to a protest of the award.
And if the agency doesn’t take the right steps, it could lead to a long line of legal litigation and bad feelings between staff and private suppliers or contractors.
Gary Coles, senior vice president for MV Transportation Inc., said taking a lost bid to challenge or fighting it in court is a costly for companies of all sizes, so it takes specific issues for them to want to challenge a bid. It can be complicated in some issues, such as a RFP written in a specific way where it shows the agency was forced to put a service out to bid but doesn’t want to actually change vendors.
“When I see that, then I assume the deck is stacked against us,” he said.
Coles spoke on bid challenging issues at the American Public Transportation Association (APT)A Annual Meeting Oct. 7 in San Francisco. He was joined by Joe Ramirez, contracts and procurement manager for Valley Metro; Bill Whitbred, southwest manager for LTK Engineering Inc.; James Harper, Federal Transit Administration (FTA) director of the Office of Acquisition Management and moderated by John Adler, vice president of procurement for Dallas Area Rapid Transit (DART).
All of them said protesting contracts is the right of a company and part of doing business, so they recommended trying to keep emotion out of a contract challenge.
Harper said it’s important to notify the FTA immediately of the challenge and if it’s valued at more than $150,000 to contact the regional office immediately to inform them of the challenge.
He also said to contact the FTA if it’s a controversial or highly publicized topic that will be in the press.
“They do not want us to hear about it before they come to us,” he said.
FTA needs to know the basis of the protest and who filed. Interested parties (those with a fiduciary interest in the project), consortias and associations can also file a protest, but only the lead company or person can be the person to file the claim.
Subcontractors can’t because there’s no privy of contract.
Haper said there are more than 1,100 federal rules that must be met for procurement, but if the FTA declines to entertain a protest, it’s not an approval or disapproval of the protest.
He also noted that if a protest goes the legal route of protesting before challenging it administratively, they can’t take the administrative route.
Ramirez said protests often happen post award so the companies have all the facts, but if the agency takes time, is fair and open in its bid process and follows its RFP rules, it can help mitigate issues.
While there are some companies that may protest a bid out of emotion, there are steps agencies can take to mitigate some claims. Whitbred said taking time with the procurement process, being fair, knowing what you want and need, being open and following the agency's own rules can help.
