(a) Applicability. This section prescribes exclusive
procedures for protests regarding:
(1) allegations that the terms of a request for qualifications
or request for proposals are wholly ambiguous, contrary to legal requirements
applicable to the procurement, or exceed the department's authority;
(2) a determination as to whether a qualifications
submittal or proposal is responsive to the requirements of the request
for qualifications or request for proposals, as applicable;
(3) short-listing determinations; and
(4) award of a design-build contract.
(b) Required early communication for certain protests.
Protests concerning the issues described in subsection (a)(1) of this
section may be filed only after the proposer has informally discussed
the nature and basis of the protest with the department, following
the procedures for those discussions prescribed in the request for
qualifications or request for proposals, as applicable.
(c) Deadlines for protests.
(1) Protests concerning the issues described in subsection
(a)(1) of this section must be filed as soon as the basis for the
protest is known, but no later than 20 calendar days prior to the
date for submission of the qualifications submittal or proposal, unless
the protest relates to an addendum to the request, in which case the
protest must be filed no later than 5 business days after the addendum
is issued.
(2) Protests concerning the issues described in subsection
(a)(2) of this section must be filed no later than 5 business days
after receipt of the notification of non-responsiveness.
(3) Protests concerning the issues described in subsection
(a)(3) and (4) of this section must be filed no later than 10 business
days after the earliest of the notification of short-listing or intent
to award, and the public announcement of the short-listing determination
or the apparent best value proposer.
(d) Content of protest. Protests shall completely and
succinctly state the grounds for protest, its legal authority, and
its factual basis, and shall include all factual and legal documentation
in sufficient detail to establish the merits of the protest. Statements
shall be sworn and submitted under penalty of perjury.
(e) Filing of protest. Protests shall be filed in the
manner and at the address specified in the request for qualifications
or request for proposals, and a copy of the protest shall be submitted
to all other proposers for the project.
(f) Comments from other proposers. Other proposers
may file statements in support of or in opposition to the protest
within 7 days of the filing of the protest. The department shall promptly
forward copies of all those statements to the protestant. Any statements
shall be sworn and submitted under penalty of perjury.
(g) Burden of proof. The protestant shall have the
burden of proving its protest. No hearing will be held on the protest.
The protest shall be decided on the basis of written submissions.
(h) Decision on protest. The department employee specified
in the request for qualifications or request for proposals, as applicable,
shall issue a decision on the protest within 30 days of the filing
of the protest. The designated employee shall not be a member of a
committee or subcommittee involved in the evaluation of qualifications
submittals or proposals for the project.
(i) Protestant's payment of costs. If a protest is
denied, the proposer filing the protest shall be liable for the department's
costs reasonably incurred to defend against or resolve the protest,
including legal and consultant fees and costs, and any unavoidable
damages sustained by the department as a consequence of the protest.
(j) Rights and obligations of proposers. Each proposer,
by submitting its proposal, expressly recognizes the limitation on
its rights to protest provided in this section, and expressly waives
all other rights and remedies and agrees that the decision on the
protest is final and conclusive. If a proposer disregards, disputes,
or does not follow the exclusive protest remedies provided in this
section, it shall indemnify and hold the department and its officers,
employees, agents, and consultants harmless from and against all liabilities,
fees and costs, including legal and consultant fees and costs, and
damages incurred or suffered as a result of that proposer's actions.
Each proposer, by submitting a proposal, shall be deemed to have irrevocably
and unconditionally agreed to this indemnity obligation.
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