Bid Protest Procedures
General
Protests will be accepted from prospective bidders or offerors whose direct economic interest would be affected by the award of a contract or by failure to award a contract. The Fargo Transit Administrator and the Moorhead Transit Manager will consider all protests or objections filed in a timely manner regarding the award of a contract, whether submitted before or after award. All protests shall be in writing and shall be supported by sufficient information to enable the protest to be considered. A protest will not be considered if it is insufficiently supported or it is not received within the time limits specified herein. Protest submissions should be concise, logically arranged, and clearly state the ground for the protest. Protests must include at least the following information:
- • Name, address, and telephone number of protestor.
• Identification of the solicitation or bid.
• A detailed statement of the legal and factual grounds of the protest, including copies of relevant documents.
• A statement as to what relief is requested.
Protests should be sent via certified mail through the U.S. Postal Service to:
City of Fargo, Transit Director, 650 23rd St North, Fargo, ND 58102
City of Moorhead, Transit manager, 650 23rd St North, Fargo, ND 58102
Protests must be filed with Metro Area Transit in accordance with our procedures and time requirements. The protest to Metro Area Transit must be complete and contain all the issues that the protestor believes relevant. Metro Area Transit will respond to each substantive issue raised in the protest. Failure to include an issue in the protest to Metro Area Transit will preclude raising the issue to FTA, if the protest is appealed to that agency. Following an adverse decision by Metro Area Transit, protestor may file a protest with FTA under certain limited circumstances listed in paragraph 6.0.
On occasion, when considered appropriate by the Fargo City Administrator and/or the Moorhead City Manager, an informal conference on the merits of the protest with all interested parties may be held.
Protests Before Award
Solicitation Phase
Protests concerning the solicitation must be submitted in writing by COB [date]. If the written protest is not received by the time specified, award may be made in the normal manner unless the Fargo Transit Administrator and the Moorhead Transit Manager, upon investigation, find that remedial action is required. Oral protests not followed up by a written protest will be disregarded.
Notice of a protest and the basis therefore will be given to all potential bidders or offerors.
Pre-Award Phase
When a protest against the making of an award is received after receipt of bids or proposals but prior to award, COB [date], the Fargo Transit Administrator and the Moorhead Transit Manager may determine to withhold the award pending disposition of the protest. Metro Area Transit will provide a written response to each material issue raised in the written protest. Notice of a protest as well as Metro Area Transit’s response will be provided to bidders/proposers who responded to the solicitation and are in line for the award of a contract.
Where a written protest against the making of an award is received by the time specified (COB [date]), an award will not be made unless Metro Area Transit determines that:
- • The items to be procured are urgently required;
• Delivery or performance will be unduly delayed by failure to make award promptly; or,
• Failure to make award will otherwise cause undue harm to Metro Area Transit or the Federal Government.
If award is made, the Fargo Transit Administrator and the Moorhead Transit Manager will document the file to explain the need for an award and will give written notice of the decision to proceed with the award to the protestor and, as appropriate, to others concerned by COB [date].
Protests After Award
A protest received by COB [date], shall be reviewed by the Fargo Transit Administrator, the Moorhead Transit Manager, and the Legal Department. The selected contractor will, in any event, be furnished with the notice of protest and the basis therefore. When it appears likely that an award may be invalidated and a delay in receiving the supplies or services is not prejudicial to Metro Area Transit’s interest, the Fargo Transit Administrator and the Moorhead Transit Manager may consider a mutual agreement with the contractor to suspend performance on a no-cost basis. A written response by the Fargo Transit Administrator and the Moorhead Transit Manager will be issued by COB [date].
Post-Award Appeals
Appeals must be sent in writing to the Fargo City Commission and/or the Moorhead City Council by COB [date]. The Fargo City Commission and/or the Moorhead City Council will schedule a hearing between [dates], where the appellant may be heard. The Fargo City Commission and/or the Moorhead City Council will issue Metro Area Transit a final written determination by [date].
The decision of the Commission and/or Council is final and no further appeals may be made.
Determination of Interested Party
An interested party is an actual prospective bidder or offeror whose direct economic interest would be affected by award of a contract or failure to award a contract. This definition specifically excludes subcontractors and suppliers.
- 5.1 The ability to qualify as an actual or prospective bidder/proposer ends when the bid/proposal period ends.
5.2 The offer received from the protestor must be technically responsive.
5.3 The protestor must be the next in line to receive the award if the protested issues prevail.
5.4 If not next in line, the protestor must successfully challenge all intervening offers to establish next in line status.
Protests to FTA
Under certain limited circumstances, an interested party may protest to FTA the award of a contract pursuant to an FTA grant. FTA’s review of any protest will be limited to alleged failure of Metro Area Transit to have or follow its written protest procedures or alleged failure to review a complaint or protest.
Time for Filing
An appeal to FTA must be received by FTA Region VIII within five (5) working days of the date the protester learned or should have learned of an adverse decision by the grantee or other basis of appeal to FTA. Protests should be addressed to:
U.S. Department of Transportation
Federal Transit Administration, Region VIII
12300 W Dakota Ave, Suite 310
Lakewood, CO 80228
Violations of Federal law or regulation will be handled by the complaint process stated within the law or regulation.
Submission of Protest to FTA
A protestor must exhaust all administrative remedies with Metro Area Transit before pursuing a protest to FTA.
Protests to FTA should be sent to the FTA Regional or Headquarters Office. A concurrent copy of the protest must be sent to Metro Area Transit.
The protest filed with FTA shall:
- • Include the name and address of the protestor.
• Identify Metro Area Transit and the number/title of the contract solicitation.
• Contain a statement of the grounds for the protest and any supporting documentation. This should detail the alleged failure of Metro Area Transit to have or follow its protest procedures or the alleged failure to review a complaint or protest.
• Include a copy of the local protest filed with Metro Area Transit and a copy of Metro Area Transit’s decision, if any.
Other remedies
Contractors may seek remedy in the North Dakota/Minnesota state courts, as applicable, if they desire to do so.