Christopher R. Hogle and Christopher D. Mack
The editorial board of the Utah Bar Journal indicates that proposed articles of “broad appeal and application” are favored, but this is not such an article. In fact, it’s hard to imagine a narrower topic than the reviewability of decisions by procurement units to lift stays of the procurement process during the pendency of bid protests. But this topic is important. It implicates fundamental separation of powers and due process principles and the basic purposes behind the Utah Procurement Code. Indeed, the issue of whether Utah’s appellate courts may review decisions to lift such stays is so important that the Utah Court of Appeals certified a case involving that issue to the Utah Supreme Court for its consideration. This topic is also timely. The subject of this article was recently before the Utah Supreme Court, in the case certified by the court of appeals, and it was s a subject of an article published in the last issue of the Utah Bar Journal by Zachary Christensen, director of purchasing and contracts for the Utah State Board of Education. Protest Actions in Public Procurement: How to Provide Value as Counsel. Vol. 32, No. 5 Utah B.J. (Sep./Oct. 2019). Mr. Christensen’s article suggests that decisions by agency heads to lift the automatic stay are unreviewable by any court. Id. at 37. This article states the case for the reviewability of such decisions.
The Automatic Stay of Contract Negotiations and Awards During the Pendency of Protests Is Critical to Protestors
As Mr. Christensen ably explains, the public procurement process is the means by which state and local governmental agencies obtain goods and services from vendors. Protests are the means by which unsuccessful vendors identify agency errors and omissions that caused them to lose solicitations and seek to change the outcome. The solicitation referenced in Mr. Christensen’s article is a good example.
The Utah Communications Authority (UCA) issued a request for proposals (RFP) solicitation for a new, statewide radio system for use by emergency dispatchers and first responders; two vendors responded: Motorola Solutions, Inc. (Motorola) – the incumbent provider – and Harris Corporation (Harris); and UCA selected Harris’s proposal over Motorola’s. After UCA’s announcement of Harris as the RFP winner, UCA began to negotiate a contract with Harris, and based on numerous grounds, Motorola filed several protests over UCA’s handling of the solicitation, each protest filed as soon as Motorola discovered evidence of a basis to do so. Mr. Christensen sat on the three-member procurement appeals panel that affirmed the decisions of the protest officer who denied Motorola’s protests, as he points out in his article, and the authors of this article represented Motorola.
Under the Utah Procurement Code, a protest automatically stays further procurement proceedings, including negotiations between the agency and the selected vendor toward a contract. Utah Code Ann. § 63G-6a-1903. Accordingly, upon the filing of Motorola’s protests, UCA was prohibited from “proceeding further with a solicitation or with the award of a contract” to Harris “until… all administrative and judicial remedies are exhausted.” Id. § 63G-6a-1903(2)(a).
The automatic stay is critical to protestors. It protects protest rights and preserves an effective protestor remedy. If the protestor prevails on its protest during the stay, i.e., before a contract can be awarded to the vendor selected by the procurement unit, the protestor has an adequate remedy: “the procurement or proposed award shall be cancelled or revised to comply with the law.” Id. § 63G-6a-1909.
The code provides for an exception to the automatic stay. The stay may be lifted if one of the enumerated officials with a procurement unit, after consultation with the unit’s attorney, “makes a written determination that award of the contract without delay is in the best interest of the procurement unit or the state.” Id. § 63G-6a-1903(2)(b) and (c). If the stay is lifted in this manner and the procurement unit awards a contract to the selected vendor before a protest has been fully adjudicated, the procurement unit may ratify and affirm the contract “if it is in the best interests of the procurement unit” in the event that the protest is ultimately sustained. See id. § 63G-6a-1907(1)(a)(i)(A).
In that event, the protestor is left without an effective remedy. Though a protestor whose protest is sustained may recover “reasonable costs incurred in connection with the solicitation, including bid preparation and appeal costs,” id. § 63G-6a-1904(1) (a), the possibility of such a recovery is generally inadequate by itself to compel a protestor to incur the fees associated with advancing a protest. Plus, each protestor runs the risk...