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Vendor’s Right to Protest

PROTESTED BIDS

  1. Right to Protest
    1. Any actual proposer who claims to be aggrieved in connection with a specific solicitation process may submit a protest in writing to the Director of Procurement and Contract Services within seven (7) calendar days after he or she knows or should have known the facts giving rise to the protest.

      All proposers should know and shall be deemed responsible for knowing the facts documented in the University’s procurement files on the day the University opens the bid files for public inspection.

      Any issues raised by the protesting party after the seven (7) calendar day period shall not be considered as part of the protest.
    2. Signature on Protest Constitutes Certificate. The signature of an attorney or protesting party on a request for consideration, protest, motion, or other document constitutes a certificate by the signer that the signer has read such document, that to the best of the signer’s knowledge, information, and belief formed after reasonable inquiry, it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass, limit competition, or to cause unnecessary delay, or needless increase in the cost of the procurement or of the litigation. If a request for consideration, protest, pleading, motion, or other document is signed in violation of this subsection before or after appeal to the Chancellor, the Chancellor upon motion or upon his/her own initiative, may impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties, including the affected University, the amount of the reasonable expenses incurred because of the filing of the protest, a petition for a stay of award, pleading, motion, or other paper, including reasonable attorneys’ fees.
    3. Neither a protest nor a stay of award shall proceed under this section unless the protesting party posts a protest bond (See Appendix I). The protesting party shall post, with the Director of Procurement and Contract Services of the University, at the time of filing a notice of protest, a bond payable to the University in the amount of five percent (5%) of the lowest cost proposal evaluated or five percent (5%) of the highest revenue proposal evaluated. Such protest bond shall be in form and substance acceptable to the University and shall be immediately payable to the University conditioned upon a decision by the Chancellor that:
      1. A request for consideration, protest, pleading, motion, or other document is signed, before or after appeal to the Chancellor, in violation of subsection A. (ii);
      2. The protest has been brought or pursued in bad faith; or
      3. The protest does not state on its face a valid basis for protest.
    4. The University shall hold such protest bond for at least eleven (11) calendar days after the date of the final determination by the University. If the protesting party appeals the determination in accordance with subdivision (vii), the University shall hold such protest bond until instructed by the Chancellor to either keep the bond or return it to the protesting party.
    5. At the time of filing notice of a protest of a procurement in which the lowest evaluated cost proposal is less than one million dollars ($1,000,000), or in which the highest evaluated revenue proposal is less than one hundred thousand dollars ($100,000), a minority or small business protesting party may submit a written petition to the Director of Procurement and Contract Services for exemption from the protest bond requirement of subsection A.(iii). Such a petition must include clear evidence of minority or small business status. On the day of receipt, the petition shall be given (may be faxed) to the Chancellor or designee. The Chancellor has five (5) business days in which to make a determination. If an exemption from the protest bond requirement is granted, the protest shall proceed as though the bond were posted. Should the Chancellor deny an exemption from the requirement, the protesting party shall post the bond with the Director of Procurement and Contract Services of the University as required in subsection A.(iii) within three (3) business days of the determination. For the purposes of this section, “minority business” is defined as solely owned or at least fifty-one percent (51%) owned by a person or persons who control the daily operation of such business and who is disabled (a person having a physical or mental impairment that in the written opinion of the person’s licensed physician, substantially limits one (1) or more of the major life activities of such person, including caring for oneself, and performing manual tasks, which include writing, walking, seeing, hearing, speaking, and breathing); African American (persons having origins in any of the Black racial groups of Africa); Asian American (persons having origins in any of the original peoples of the Far East, Southeast Asia and Asia, the subcontinent, or the Pacific Islands); Hispanic American (persons of Cuban, Mexican, Puerto Rican, Central or South American, or other Spanish or Portuguese origin, culture, or descent, regardless of race,); or Native American (persons having origins in any of the original peoples of North America). For purposes of this section, “small business” is defined as one which is independently owned and operated, has total gross receipts of no more than two million dollars ($2,000,000) for the most recently ended federal tax year, and employs no more than thirty (30) persons on a full-time basis.
  2. Authority to Resolve Protest
    1. The Director of Procurement and Contract Services of the University has the authority to resolve the protest. If deemed necessary, the Director of Procurement Services may request a meeting with the protesting party to seek clarification of the protest issues.
    2. The final determination of the Director of Procurement and Contract Services shall be given in writing and submitted to the protesting party.
    3. The protesting party may request that the final determination of the Chief Procurement Officer be considered by the Vice President for Business and Finance of the University. The request for consideration shall be made in writing to the Vice President for Business and Finance within seven (7) calendar days from the date of the final determination by the Director of Procurement and Contract Services.
    4. The Vice President for Business and Finance has the authority to review and resolve the protest. If deemed necessary, the Vice President for Business and Finance may request a meeting with the protesting party to seek clarification of the protest issues. The final determination of the Vice President for Business and Finance shall be given in writing and submitted to the protesting party.
    5. The protesting party may request that the final determination of the Vice President for Business and Finance be considered by the President of the University. The request for consideration shall be made in writing to the President within seven (7) calendar days from the date of the final determination by the Vice President for Business and Finance.
    6. The University shall have no longer than sixty (60) calendar days from receipt of the protest to resolve the protest.
    7. The protesting party may request that the final determination of the President be considered by the Chancellor. The request for consideration shall be made in writing to the Chancellor within seven (7) calendar days from the date of the final determination by the President. The determination of the Chancellor or designee is final and shall be given in writing and submitted to the protestor.
    8. In the event that the University fails to acknowledge receipt of a protest within fifteen (15) days of receipt of a protest or fails to resolve the protest within sixty (60) calendar days, the protesting party may request that the Chancellor consider the protest at a meeting.
  3. Stay of Award
    Prior to the award of a contract, a proposer who has protested may submit to the Vice President for Business and Finance a written petition for stay of award. Such stay shall become effective upon receipt by the Vice President for Business and Finance. The Director of Procurement and Contract Services shall not proceed further with the solicitation process or the award of the contract until the protest has been resolved in accordance with this section, unless the Chancellor makes a written determination that continuation of the solicitation process or the award of the contract without delay is necessary to protect substantial interests of the University. It shall be the responsibility of the Vice President for Business and Finance to seek such determination by the Chancellor.
  4. Protest Subsequent to Award
    The Tennessee Claims Commission has exclusive jurisdiction to determine all monetary claims against the state for the negligent deprivation of statutory rights.
  5. Appeal to Chancery Court
    Protests appealed to the chancery court from the Chancellor’s decision shall be by common law writ of certiorari.  The scope of review in the proceedings shall be limited to the record made before the Chancellor and shall involve only an inquiry into whether the Chancellor exceeded his/her jurisdiction, followed an unlawful procedure, or acted illegally, fraudulently or arbitrarily without material evidence to support his/her action.
  6. Appendix I
    A protest bond (PDF) may be presented to the University in form and substance compliant with the Protest Bond format attached in Appendix I. Any protest bond presented to the University that represents a deviation from the Appendix I format shall be considered for acceptability by the University on a case by case basis.