Section 261(2) of the Management and Budget Act of 1984, PA 431, MCL 18.1261(2), provides that: the department shall make all discretionary decisions concerning the solicitation, award, amendment, cancellation, and appeal of state contracts.
Who Can Protest?
Only a bidder on a given solicitation may protest an award decision. A bidder is considered a vendor who has submitted a formal offer that meets all submission requirements and is, therefore, considered "responsive." A "No Bid" in the context of a protest does not constitute a formal offer. The state, at its discretion, may consider information submitted by manufacturers or suppliers selling through distributors or businesses listed as subcontractors in a vendor’s proposal.
Protests Lacking Standing
To maintain the integrity of the procurement process and to ensure that state departments receive procurements without undue delay, protests requesting waiver of the following omissions and requirements cannot be upheld.
- Failure of a bidder to properly follow solicitation submission instructions.
- Failure of a bidder to submit the bid to Central Procurement by the due date and time, in the format required (online vs. hardcopy), and through the forum required (i.e., e-procurement system).
- Failure of a bidder to provide mandatory samples, descriptive literature, or other required documents by the date and time specified.
- Failure of a bidder to provide a required deposit or performance bond by the date and time specified.
- Failure of a bidder to submit a protest within the time stipulated in the solicitation (RFP, ITB, etc.) or as determined by the Chief Procurement Officer.
However, if there are no responsive responses, these requirements may be put aside at the discretion of the Chief Procurement Officer.
A vendor should raise concerns about solicitation specifications during the question-and-answer period. If any vendor fails to protest a specification issue to the state with regard to proprietary or deficient specifications prior to the bid deadline, subsequent protests regarding specifications may be held to be without merit.
In fairness to bidders who meet specifications and to prevent delays in procurement, DTMB Central Procurement will not withdraw a recommendation to award or re-evaluate proposals when a protest maintains that the specifications were faulty or that a proposal exceeding specifications provided a better value than a lower proposal meeting specifications, unless the state determines that this action would be in its best interest.
How to Initiate a Protest
To initiate a protest of an award recommendation, a business must follow these steps:
- The protest must be received in writing by the date and time identified in the solicitation. If the published protest due date falls on a Saturday, Sunday, or state holiday, the protest may be submitted, by the published time, on the next state business day to be considered.
- The written protest should include the solicitation number and should clearly identify the facts believed to constitute an error in the award recommendation and the desired remedy.
- The protesting bidder should focus on identifying the following in their letter of protest:
- Any specific Michigan statute that was violated (such as the application of a required preference)
- Any specific procurement policy that was not applied (such as conflict of interest, fraud, or ethics violation)
- Any specific solicitation instruction that was not followed (such as the evaluation and award instructions)
- Only the information provided within the protest period will be considered in arriving at a decision. The Chief Procurement Officer is not required to take into consideration any material filed by any party after the protest deadline.
- The Chief Procurement Officer or their designee will investigate and provide a written response to the protesting party. This decision is final.
- Until issuing a final decision on a timely protest, DTMB Central Procurement will not finalize an award of a contract or purchase order pursuant to a disputed solicitation. However, if there is a threat to public health, safety, or welfare, or danger of immediate and substantial harm to state property from delay in making an award, the Chief Procurement Officer may proceed with an award and document the justification for such action.
- A revised award recommendation, based on a protest review, does not assure that there will be a new protest period.
The Freedom of Information Act (FOIA) process is not related to the protest process and is not a reason for a protest period extension.