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Chapter 3 Protest Procedures

300 Parties Entitled To Protest

300.1 An aggrieved person, as defined in Subsection 199.1, may protest to the Board a solicitation issued by or for a District contracting agency for the procurement of property or services, or a proposed award, or the award of such a contract.

301 Form And Content Of Protest

301.1 All protests shall be in writing, addressed to the Board, and shall include the following:

(a) The name, address, and telephone number of the protester;

(b) The identity of the contracting agency, the number and date of the solicitation, and if a contract has been awarded, the number and date of the contract and to whom the contract was awarded, if known;

(c) A clear and concise statement of the legal and factual grounds of the protest, including copies of relevant documents, and citations to statutes, regulations, or solicitation provisions claimed to be violated;

(d) Information establishing the timeliness of the protest (see Section 302);

(e) Information establishing that the protester is an aggrieved person for the purpose of filing the protest (see Subsection 199.1); and

(f) The relief sought by the protester.

In addition, a protest may request a protective order, request specific documents relevant to the protest grounds, and request a hearing.

301.2 Protests shall be signed by the protester or by an authorized representative or attorney.

301.3 Protests are not required to be formal or technical but shall be logically arranged and legally sufficient.

301.4 A protest may be dismissed for failure to comply with any of the requirements of this Rule.

302 Filing The Protest With The Board; Time Limitations

302.1 Unless filed electronically in accordance with Chapter 4, the protester shall file an original and two (2) paper copies of its protest, including all attachments, with the Board by hand delivery, mail, or commercial carrier within the time limitations established by law and set forth below in Subsection 302.2. The protester shall also serve a copy of the protest, including all attachments, on the contracting agency and shall furnish the Board with proof of service.

302.2 Time Limitations. Filing occurs when the protest is received on paper by the Board or electronically by the Board's designated electronic filing system in accordance with Chapter 4. The following paragraphs specify the time limitations associated with the filing of a protest.

(a) A protest based upon alleged improprieties in a solicitation which are apparent prior to bid opening or the time set for receipt of initial proposals shall be filed with the Board prior to bid opening or the time set for receipt of initial proposals. In procurements where proposals are requested, alleged improprieties which do not exist in the initial solicitation, but which are subsequently incorporated into the solicitation, must be protested not later than the next closing time for receipt of proposals following the incorporation.

(b) Protests other than those covered in paragraph (a) shall be filed with the Board not later than ten (10) business days after the basis of the protest is known or should have been known, whichever is earlier.

302.3 A protest concerning a procurement conducted by an agency exempt from the Procurement Practices Reform Act, which has entered into an agreement with the Board under Subsection 101.8 to resolve protests, shall be filed with the Board within the time prescribed by the agency's regulations. If the agency has no regulations placing limits on the time for filing protests, these rules shall govern.

303 Board Docketing Of Protests

303.1 Docketing of Protests. When a protest has been accepted for filing by the Board, it shall be docketed immediately.

(a) The Board shall prepare an acknowledgment that the protest has been docketed, indicating the name of the protester, the solicitation at issue, the Board's protest docket number, and the District of Columbia Register citation to the current rules of the Board. In addition, the Board shall advise the protester of the identity of the persons furnished with the acknowledgment.

(b) Within one (1) business day of receipt of the protest filing, the Board shall send a copy of the acknowledgment to:

(1) The contracting officer;

(2) The Office of the Attorney General or the counsel for an independent agency; and

(3) The protester.

(c) The parties will also be notified that the acknowledgment is available at the Board for pickup.

303.2 The acknowledgment shall notify the contracting officer to file the Agency Report as prescribed in Section 305.

303.3 The contracting agency shall immediately give notice of the protest to:

(a) In the case of a protest alleging solicitation improprieties, prospective bidders or offerors who can reasonably be ascertained;

(b) In protests other than those covered in paragraph (a), (i) if a contract has not been awarded, to all bidders or offerors who appear to have a reasonable prospect of receiving an award; (ii) if a contract has been awarded, to the contract awardee and all other bidders or offerors who appear to have a reasonable prospect of receiving an award if the protest is sustained.

The contracting agency shall furnish copies of the protest submissions to those parties, except where disclosure of the information is prohibited by law, with instructions to communicate further directly with the Board. All parties shall furnish copies of all protest communications to the contracting agency and to other participating parties.

303.4 All protest communications shall be sent by means reasonably calculated to effect timely delivery.

304 Automatic Stay; Director Determination To Proceed

304.1 Automatic Stay Procedures. Except as provided by law, no contract may be awarded in any procurement after the contracting officer has received the notice of protest pursuant to Subsection 303.1 (b) and while the protest is pending.

304.2 If an award has already been made but the contracting officer receives the notice of protest within eleven (11) business days after the date of award, the contracting officer shall immediately direct the awardee to cease performance under the contract and to suspend any related activities that may result in additional obligations being incurred by the District under that contract. Except as provided by law, performance and related activities suspended pursuant to law may not be resumed while the protest is pending.

304.3 Director Determination to Proceed with Performance. Performance under a protested procurement may proceed, or award may be made, while a protest is pending only if the Director makes a written determination, supported by substantial evidence, that urgent and compelling circumstances that significantly affect interests of the District will not permit waiting for the decision of the Board concerning the protest. A copy of the determination shall be provided within one business day of issuance to both the Board and the protester.

304.4 Protester Challenge. If the protester wishes to challenge a determination made by the Director pursuant to Subsection 304.3, the protester may do so by filing a written motion with the Board (with same day service on the District) within five (5) business days of receipt of a copy of the Director's determination. The District shall file a written response with the Board (with same day service on the protester) within two (2) business days of receipt of the protester's motion. The protester may file a reply within one (1) business day of receipt of the District's response.

304.5 Board Decision on Protester Challenge. The Board shall issue a decision on the protester's motion within ten (10) business days after the date the written motion is filed by the protester.

305 Agency Report

305.1 As expeditiously as possible but no later than twenty (20) days after receipt of the Board acknowledgment specified in Subsection 303.1 (a), the contracting agency shall file an Agency Report with the Board which shall include, where relevant:

(a) The procurement solicitation;

(b) The bid or proposal submitted by the protester;

(c) The bid or proposal which is being considered for award, or which has resulted in an award, if any;

(d) Bid tabulation sheets or proposal selection reports and evaluation reports, work papers, and scoring sheets;

(e) The contracting agency position and defense for each ground of the protest, including the facts, legal principles, and precedents supporting its position; and

(f) Any other documents and exhibits that are relevant to the protest.

305.2 The contracting agency shall simultaneously provide a copy of the Agency Report to the protester and all interested parties.

305.3 Copies of the Agency Report provided under Subsection 305.2 shall include all relevant documents including documents containing protected information. Copies of the Agency Report served on the protester or an intervenor shall be redacted to exclude protected information unless such parties have been admitted under a protective order.

305.4 The Board may require parties to supplement the Agency Report by filing other documents and tangible things. Any motion by a party to compel the District to supplement the Agency Report must be filed within five (5) days after receipt of the Agency Report.

305.5 All exhibits in the Agency Report shall be considered, without further action by the parties, a part of the record upon which the Board will render its decision. However, a party may object, for reasons stated, to consideration of a particular document reasonably in advance of closing the record. If an objection is made, the Board shall remove the documents from the Agency Report and permit the party offering the document to move its admission as evidence.

305.6 Documents in the Agency Report may be originals or legible facsimiles or authenticated copies, and shall be arranged in chronological order where practicable, numbered sequentially, tabbed, and indexed to identify the contents of the file.

305.7 Original copies of documents may be withdrawn from the Agency Report, with the Board's consent, if an acceptable copy is substituted.

305.8 The contracting agency may request, by motion, an extension of the deadline for filing the Agency Report and shall explain why an extension is needed. Extensions are to be considered exceptional and will be granted only for good cause.

305.9 When a contracting agency fails to submit an Agency Report, the Board may treat the factual allegations contained in the protest as conceded. When a contracting agency fails to challenge or rebut a factual allegation in the protest, the Board may treat the factual allegation as conceded.

306 Dispositive Motion In Lieu Of Report

306.1 In lieu of filing the Agency Report, the contracting agency may file a dispositive motion with the Board and serve it on all parties. If the motion is filed and denied by the Board in whole or in part, the Agency Report shall be filed no later than ten (10) days after receipt of the Board's ruling or within a lesser period as the Board may order.

307 Comments On Agency Report Or Motion

307.1 Within seven (7) business days after receipt of the Agency Report, or the dispositive motion prescribed in Subsection 306.1, the protester and interested parties may file a reply or response to either which shall state the party's factual and legal agreement or opposition to the Agency Report or motion.

307.2 All parties shall be served with a copy of the comments and proof of service provided to the Board.

307.3 Failure of the protester to file comments, or to file a statement requesting that the case be decided on the existing record, or to request an extension of time for filing, shall result in closing the record of the case and may result in dismissal of the protest.

307.4 When a protester fails to file comments on an Agency Report, factual allegations in the Agency Report's statement of facts not otherwise contradicted by the protest, or the documents in the record, may be treated by the Board as conceded.

308 Summary Disposition Of Protests

308.1 When a protest is, on its face, invalid or untimely filed, or otherwise not for consideration, the Board shall summarily dismiss the protest without requiring submission of an Agency Report.

308.2 Frivolous Protests. The Board may dismiss, at any stage of the proceedings, any protest, or portion of a protest, it deems frivolous. In addition, the Board may require the protester to pay the agency attorney fees, at the rate of one hundred dollars ($100) per hour, for time counsel spent representing the agency in defending the frivolous protest or its frivolous part. If the entire protest is dismissed on frivolous grounds, the Board may also assess the protester damages for each day the contract was suspended equal to the amount of liquidated damages specified in the contract for late completion of the contract. The Board shall not determine damages, if liquidated damages are not specified in the contract. In addition, counsel for the protester may be suspended or barred from practicing before the Board.

308.3 A motion for assessment of agency attorney fees and/or damages on account of defending against a frivolous protest shall be submitted by the contracting agency during protest proceedings or within twenty (20) days of receipt of a Board decision determining that a protest in whole or in part was frivolous.

308.4 The motion shall be accompanied by sufficient documentation supporting the requested costs and/or damages.

308.5 The protester may, within fifteen (15) days after its receipt of the contracting agency's motion, file a written response to the motion.

309 Discovery

309.1 Discovery in protest cases shall be permitted only with approval by the Board and is available only to the protester, the contracting agency, and an intervenor.

309.2 The Board may permit a protester or intervenor to engage in discovery if no Agency Report is filed in order to provide a sufficient factual basis for the fair and just resolution of the protest.

309.3 The cost of discovery pursuant to Subsection 309.2 may be borne by the contracting agency as equitably determined by the Board.

310 Conference

310.1 A conference may be held at the discretion of the Board upon its own motion or upon the request of the protester, the contracting agency, or another proper party who filed comments on the Agency Report in accordance with Section 307.

310.2 A request for a conference shall be made promptly in order to receive favorable consideration.

310.3 The protester, all proper parties who filed comments, and the contracting agency may attend the conference and the Board may request the attendance of other persons as it deems appropriate.

310.4 The conference shall be an informal meeting between the Board and the parties to discuss matters relevant to the protest without strict regard to formal rules of evidence or procedure. These matters may include:

(a) Simplifying or clarifying the issues including the elimination of frivolous allegations or defenses;

(b) Stipulations, admissions, or agreements which will avoid unnecessary proof;

(c) Clarification of matters already in the record; and

(d) Any other matter which might aid in a just and expeditious disposition of the protest.

310.5 No direct or cross-examination shall be permitted at the conference.

310.6 The conference may be electronically recorded by the Board at its discretion. If the preparation of a transcript is ordered by the Board, any party desiring a copy of the transcript shall be responsible for obtaining one at the party's expense.

310.7 The Board may require or permit the submission of briefs, legal memoranda, or proposed findings of fact and conclusions of law after the conference has been completed. A party failing to attend the conference shall not be permitted to file a post-conference submission.

311 Evidentiary Hearings

311.1 If the Board determines that there is a genuine issue of material fact which cannot be resolved on the written record, the Board may order an evidentiary hearing. Ordinarily, hearings will be conducted at the Board, however, the Board may at its discretion order hearings by other electronic means, including by telephone.

311.2 At the hearing, the Board shall receive from the parties probative evidence or relevant testimony under oath or affirmation. Direct and cross-examination of witnesses shall be allowed at the hearing.

311.3 The hearing shall be stenographically transcribed or electronically recorded. Stenographic transcriptions shall be arranged in accordance with Subsection 211.5. Any party desiring a copy of the transcript shall be responsible for obtaining one at the party's expense.

311.4 At the conclusion of the hearing, the Board may order or permit the submission of proposed findings of fact and conclusions of law.

312 Decision

312.1 All decisions shall be in writing, based solely on the record, issued sixty (60) business days from the protest filing date, and transmitted to each party who has participated in the protest before the Board.

312.2 Judicial Review of Board decisions on Protests.

(a) A protester may seek judicial review of the Board's decision by filing a petition for review of agency action in the Superior Court of the District of Columbia.

(b) If the District determines that it should seek judicial review, the Director, with the prior approval of the Office of the Attorney General, may seek judicial review of the Board's decision in the Superior Court of the District of Columbia.

[See District of Columbia v. Group Ins. Admin., 633 A.2d 2, 14 (D.C. 1993); Francis v. Recycling Solutions, Inc., 695 A.2d 63, 70 (D.C. 1997).]

313 Reconsideration

313.1 The protester, the contracting agency, or an interested party who filed comments on the Agency Report may by motion request the Board to reconsider a decision.

313.2 Motions for reconsideration shall be conducted in accordance with Section 117 of these rules, except that the time periods contained in Subsection 117.2 and Subsection 117.4 shall be shortened to fifteen (15) days and seven (7) days respectively.

314 Remedies

314.1 If the Board determines, in sustaining a protest, that the solicitation, proposed award, or award does not comply with the applicable law, regulations, or terms and conditions of the solicitation, the Board may order the contracting agency to do one or more of the following:

(a) Terminate the contract for the convenience of the District government;

(b) Refrain from exercising any options under the contract;

(c) Recompete the contract;

(d) Issue a new solicitation;

(e) Award a contract consistent with the law and regulations; or

(f) Take such other action, except enjoining a contract award, as the Board may direct.

If the Board determines that a contract is void pursuant to D.C. Official Code § 2-359.02, the Board shall direct that the contract be canceled consistent with the requirements of D.C. Official Code § 2-359.02(c).

314.2 In determining the appropriate remedy, the Board shall consider the circumstances surrounding the procurement, including, but not limited to, the following factors:

(a) Best interest of the District government;

(b) Seriousness of the procurement deficiency or violation;

(c) Existence of prejudice to other bidders or offerors;

(d) Maintaining the integrity of the procurement system; and

(e) Good faith of District government officials and other parties.

314.3 In determining whether to terminate a contract, the Board shall consider the following additional factors:

(a) Extent of contract performance;

(b) Impact of termination on the contracting agency's activities and mission;

(c) Costs to the government from termination; and

(d) Urgent need for the procurement.

314.4 If the Board finds that the District government actions were arbitrary and capricious, the Board may, when requested, award the protester's reasonable bid or proposal preparation costs and costs of pursuing the protest, but not legal fees.

314.5 A motion for bid or proposal preparation costs and costs of pursuing the protest shall be submitted by the protester within twenty (20) days of receipt of the Board's decision.

314.6 The motion shall be accompanied by sufficient documentation supporting the requested costs and an appropriate proposed order for the Board.

314.7 The contracting agency may, within fifteen (15) days after its receipt of the protester's motion, file a written response to the motion.

314.8 At the request of the protester or the District government or on its own initiative, the Board may conduct a hearing on the motion before issuing a ruling.