Article Protest Actions in Public Procurement: How to Provide Value as Counsel, 0919 UTBJ, Vol. 32, No. 5. 34

AuthorZachary Christensen, J.
PositionVol. 32 5 Pg. 34

Article Protest Actions in Public Procurement: How to Provide Value as Counsel

Vol. 32 No. 5 Pg. 34

Utah Bar Journal

October, 2019

Zachary Christensen, J.

Working with a public entity can be a beneficial arrangement for many private sector companies. The State of Utah's operating budget for Fiscal Year 2020 is $18.5 billion, (Budget of the state of Utah, https://le.utah.gov/interim/2019/pdf/00002717.pdf), making the State of Utah one of the largest economic opportunities in the state.

With such a substantial number of taxpayer dollars up for grabs, there are statutes, rules, and policies and procedures that must be followed. These guidelines are the Utah Procurement Code, see Utah Code Ann. § 63G-6a-101 et seq., and the associated Administrative Rules, see Utah Admin. Code R33-1. The Procurement Code and its accompanying regulations apply to every procurement. See Utah Code Ann. §§ 63G-6a-103(57),-105(1). The Procurement Code mandates unique deadlines, remedies, and legal procedures; failure to abide by the Procurement Code may result in your clients waiving their rights.

The public procurement professionals, known as a "procurement unit," who create the solicitations (the invitation to offer documents) promote the purposes of the Procurement Code, which include transparency, fair and equal treatment of who participate, economy for the State, and broad-based competition. See id. § 63G-6a-102.

However, there are times when errors are made or the code may not be followed as expected. Procurement units may not be experts in everything that they procure. For example, when I first started in procurement I was a buyer for Lockheed Martin Space Systems Company, and I bought batteries for satellites and potentiometers. While I understood the procedure that had to be followed, I did not always understand the nuances in the statements of work and specifications. I had to rely on our subject matter experts for advice.

What happens if there is a problem? The code addresses that! Ideally, vendors can clarify problems or confusing portions of a solicitation during the Question and Answer Period (the time frame that a vendor is allowed to ask questions) of the solicitation. But if the ambiguity persists, or if the issue has not been resolved, the vendor must act. Any element of the solicitation that is ambiguous, confusing, contradictory, unduly restrictive, erroneous, or anticompetitive must be identified by a vendor and protested before the solicitation closes, or the vendor forfeits the right to later protest under those grounds. See id. § 63G-6a-1602(7).

Parts 16 and 19 of the Procurement Code govern protests. These sections dictate the format, content, timelines, and supporting information required for a valid protest. Unfortunately, many clients do not engage attorneys in response preparation or submission. Accordingly, attorneys may only be involved after an award has been made and a client/vendor feels aggrieved or after the protest has been...

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