Writing a Protest Response

By Jack Zeigler,CPPO, C.P.M.

Before discussing the subject of bid protests, an obligatory caveat is in order. When determining how to respond to and mitigate protests, most public entities have particular governance in place, whether it be specific laws, rules, regulations, policies, or procedures. All members of the procurement team share the responsibility of ensuring that the agency is in compliance with the appropriate requirements.

Before crafting the response to a protest, a procurement professional needs to give some thought to the audience. The group reading the response is not necessarily limited to the individual or company that filed the protest of award. The audience could be much broader. In reality, the group may consist of attorneys, newspapers, and, ultimately, a judge.

Why is understanding the audience is so important? The audience is not aware of the whole story and will make its own conclusions based, in large part, on what they read in the protest response. These conclusions could be to the public entity’s detriment. The procurement professional and his or her department could be harmed by poor publicity or a subsequent judgment against the entity in court. While the purchaser and the protester may know all the facts and issues surrounding the solicitation, other readers do not. The response to any protest needs to succinctly tell the whole story.
Like an investigative newspaper article, a well written protest response tells who, what, where, why, and how. The protest response tells who the players are, what the background is, what the issues are, why the issues are relevant (or not), and how the conclusion was reached to uphold or deny the protest. The objective of a protest response extends beyond merely rendering a determination.

The writer of the protest response needs to get the audience to a point where it agrees with the determination. At the very least, the audience should be convinced that it cannot successfully dispute the position. Guide the audience through the issues to that position. Reveal thoughtful consideration of the validity and relevancy of the issues, and reference
evidence that supports the entity’s decision. It is also beneficial to avoid an adversarial tone.

The structure of a protest response letter should contain four key elements:

1. Introduction tells the reader the purpose of the letter,
2. Background provides context for the rest of the letter,
3. Issues identify the concerns and disputes of the protester, and
4. Conclusion restates your determination that was reached after considering all the evidence.

The Introduction

The introduction of a protest letter briefly tells the audience what it is reading and the purpose of the letter. It should also state what the public entity’s decision is in response to the protest. The decision is the most important piece of information to the protester. The protester is anxious to know the decision and will immediately scan the letter until he or she finds it. Only then will the protester take the time to read the rest of the protest response letter.

The Background

The background of a protest response letter sets the stage for the following discussion of the issues of the protest. It provides relevant information that allows the audience to understand the context of the issues. The information provided in the background and the level of detail of that information is directly related to the specific protest issues.

At a minimum, this section should provide historical background information of the solicitation process, such as the scope and purpose, highlights of the solicitation process with dates, and the impacted participants, including awardees and customers. Additional information is governed by the specific protest issues.

For example, if the protest concerns issues surrounding the evaluation process, include relevant evaluation process information. Does the protest concern the qualifications of the evaluators? Is the scoring under dispute? Does the protester contend that the procurement professional did not appropriately consider all award criteria? Address the specific issues in the background by including a summary of the relevant evaluation requirements of the solicitation. After reading the background, the audience should generally understand what has happened, who is impacted, and why the protester is protesting.

The Issues

The issues section of a protest response letter is the real meat of the letter. This is the most critical section as it contains the issues of protest, relevant findings of fact, and the position arguments. The writer of the response will need to ensure that the protester’s concerns are understood. The protester’s concerns and issues are not always apparent in their letter of protest and clarification may be necessary. For example, the protester may allege that the awardee does not have the equipment or staff to perform the contract. What the protester is really saying is that the awardee was not a responsible bidder.

After the issues of protest have been identified, conduct a review of the entire solicitation process, applicable laws and regulations, and relevant documents. Read the bid file cover to cover.

It is strongly recommended that whoever conducts the bid review should not have been involved in the bid process. The review needs to be unbiased and conducted by an impartial third party.

A thorough review of the bid file ensures the entity acted consistently with the requirements of the solicitation, and that the solicitation substantially complies with purchasing statutes, regulations and policies.

Be aware that other issues may surface that are not minor informalities and, subsequently, may determine that the solicitation process was substantially flawed. While the entity may determine that the specifics of the protest itself are not grounds for overturning an award, the entity may ultimately determine that the award should be cancelled based on other findings of fact.

The issues section should be structured to allow the reader to easily identify the issues and the writer’s response to each issue. One way to do this is to begin by listing the issues of the protest under a section titled “Issues Raised in Protest.” This will be followed by a restatement of each issue and the analysis of each issue. If the protest response is lengthy, the writer may want to consider bolding each issue statement to help the reader navigate the letter. Remember, guide the reader through the issues and allow he or she to follow along–without difficulty–to the conclusion.

The analysis of each issue should contain relevant quoted references that support the position. They may be references from the solicitation document, from statutes and regulations, or from information that bidders submitted. State why the references are relevant. The purpose of using references in the response is to clearly demonstrate that the writer is not arbitrary or capricious. Simply saying, “Because I said so,” will not stand up in court.

Using an earlier example where the protester is alleging that the awardee does not have the equipment or staff to perform the contract, reference any contractor equipment requirements from the solicitation document and any applicable legal requirements regarding responsibility.

The next step is to apply the references to the issue by discussing why the references are relevant. The purpose here is to demonstrate, without a doubt, how the awardee did or did not comply with the requirements of the solicitation or relevant legal requirements. If the awardee did not comply with all the requirements, and the award should stand, the writer should also provide a discussion as to whether the issue is a minor informality.

A minor informality is an immaterial variation from the exact requirements of the competitive solicitation that would have a minor effect on the performance and, if corrected, would not change the standing of the bidders. While the protest issue may be valid, it may be a minor informality and would not effect the initial award determination.

The Conclusion

The final part of the issue analysis for each issue is the conclusion. State that based on the facts surrounding the issue the entity concludes that the issue is or is not valid.

Each issue analysis has three parts:

1. Issue statement,
2. Issue analysis with supporting references, and
3. Conclusion as to the validity of the issue.

The final part of a protest response is the conclusion. Here the writer should wrap up the analysis by restating the entity’s determination to uphold or deny the protest, and provide the general basis for the decision. This section should also contain a procedure to appeal the decision (if allowed), points of contact, and any further instructions for the protester. Maintain a positive tone by thanking the protester for their participation in the bid process and encourage them to participate in future solicitations.

Editor’s Note: Jack Zeigler CPPO, C.P.M., is Policy and Protest Manager for the State of Washington’s Office of State Procurement.
Copies of the protest policy and procedure drafted by the State of Washington, Office of State Procurement, are available upon request. To obtain a copy, contact Zeigler via e-mail: [email protected].