Albany Municipal Code § 13-18 Protests of Contract Award

[Ord. #09-04, § 1; Ord. #2018-09]

The protest procedures in this section apply to procurements for a Major Public Works Contract which are subject to formal bidding pursuant to subsection 13-5c.

a. The following procedures are a bidder's sole remedy for protesting a bid submitted by a competing bidder, including, but not limited to, (1) protests based on alleged defects in the content of a bid or the manner in which it was submitted; (2) protests alleging that a competing bidder is not responsible; or (3) protests challenging the City's administration of the procurement, including the City's bidding documents or selection process.

b. A protest must be in writing and must be received by the Director of Public Works before 5:00 p.m., no later than three (3) business days after the day on which the bids or proposals were opened, unless the time is extended in advance in writing by the City Manager based on special circumstances (the "Protest Deadline"), and must comply with the following requirements:

1. Only a bidder who has actually submitted a bid to the City is eligible to submit a protest. Third parties such as subcontractors or suppliers are not eligible to submit protests. A bidder may not rely on the protest submitted by another bidder, but must timely pursue its own protest.

2. The protest must be accompanied by a non-refundable fee, payable to the City of Albany, in the amount required under the City's current fee schedule, based upon the City's reasonable costs to administer the protest.

3. The protest must contain a complete statement of the basis for the protest and attach all supporting documentation. Material submitted after the Protest Deadline will not be considered. The protest must refer to the specific portion or portions of the bid or contract documents upon which the protest is based. The protest must include the name, address, email address, and telephone number of the protesting bidder and any person submitting the protest as an authorized representative the protesting bidder, such as legal counsel for the protesting bidder.

4. The protesting bidder must concurrently transmit a copy of the protest and all supporting documents to the protested bidder and any to other bidder who has a reasonable prospect of receiving an award depending upon the outcome of the protest, by email or personal delivery to ensure it is received before the Bid Protest Deadline.

5. The protested bidder is encouraged to submit a written response to the protest, provided the response is received by the City before 5:00 p.m., within two (2) business days after either the Protest Deadline or the protested bidder's actual receipt of a copy of the protest, whichever is sooner (the "Response Deadline"). The response must attach all supporting documentation. The response must include the name, address, email address, and telephone number of the protested bidder and any person submitting the response to the protest as an authorized representative the protested bidder, such as legal counsel for the protested bidder.

6. The protested bidder must also concurrently transmit a copy of its response and all supporting documents to the protesting bidder and to any other bidder who was copied on the bid protest, by email or personal delivery to ensure it is received before the Response Deadline.

c. The procedure and time limits set forth in this Section 13-18 are mandatory and are a bidder's sole and exclusive remedy in the event of protest. A bidder's failure to strictly comply with these procedures will constitute a waiver of any right to further pursue a protest, including, but not limited to, the right to file a Government Code Claim or to initiate legal proceedings.

d. The merits of the protest will be determined by the Public Works Director, acting in consultation with the City Attorney and subject to final approval or ratification by the City Council. The City Council's action is final and non-appealable.

e. Neither a protesting nor protested bidder is entitled to a formal hearing, with the sole exception that if the City seeks to disqualify a bidder as not responsible, the City will schedule a public hearing before the City Manager or his or her authorized delegee, and will provide the bidder with notice and opportunity to present or rebut evidence directly related to the stated grounds for rejection. The City Manager or his or her authorized delegee, acting in consultation with the City Attorney, and based on its findings of fact, will make a recommendation to the Council to either accept the bidder as responsible or to disqualify it on grounds it is not responsible. The City Council's action is final and non-appealable.

f. Subject to the limitations of law, the City further reserves the rights to waive or to decline to waive any immaterial bid irregularities; to accept or reject any or all bids; to postpone or cancel a bid; to postpone or cancel a project in whole or in part; or to perform work with its own forces. The City reserves the right to award a contract and to issue a notice to proceed with work notwithstanding any pending protest, claim, or legal action challenging the City's award.

g. Each bidder is solely responsible for any and all costs it incurs in preparing and submitting a bid, a bid protest, or protest response to the City.

h. These procedures will not apply to a protest of a contract award that does not involve formal public bidding for a Major Public Works Contract, unless or except to the extent otherwise specified in the applicable request for qualifications, request for proposals, request for quotes, or other such invitation for a competitive procurement process.