Hawaii State Procurement Office (SPO)
Procurement of Health and Human Services ~ Chapter 103F, HRS
SPO > Procurement of Health and Human Services > Protests
The Protest Process
How to File or Respond to a Protest
Where do I start?
The protest process is not as complicated or onerous as it is sometimes sounds. At this site are a number of tools you may use to guide you through the process. Begin with The FAQ on the basics to answer the questions who, what when where and how. The General Procedures contains information everyone should know. Step by Step Protest Procedures will give you an overview of how the process flows in an easy to follow table format and contains links to descriptions and comments. The flowchart (in Adobe Acrobat) is another way to get an overview of the process. When you are ready to begin submitting or responding to a protest you can find the forms listed by the party responsible for submitting the form. As you move through a protest process, the Responsibilities of Participants in a Protest is presented in an easy to read format that enables you to see quickly and clearly what you must do.
FAQ (Frequently Asked Questions)-The Basics
Step by Step Protest Procedures
Responsibilities of the Participants
Request for Reconsideration: General and Step by Step Procedures
SPO >Procurement of Health and Human Services > Protests > FAQ - The Basics
FAQ (Frequently Asked Questions) - The Basics
1.) Who participates in a protest?
There are three participants in a protest:
The protesting applicant (hereafter referred to as the Protestor)
The procurement officer for the procurement being protested (hereafter referred to as the Procurement Officer)
The head of the State purchasing agency or their designee (Hereafter referred to as the Head of the Purchasing Agency)
2. ) What matters can be protested?
Health and human service awards may be protested when made pursuant to the following methods of procurement:
Competitive purchase of services or request for proposals (RFP), or
Restrictive purchase of services (sole source).
There are three matters that may be protested:
A purchasing agency's failure to follow procedures established by Chapter 103F, HRS;
A purchasing agency's failure to follow the Hawaii Administrative Rules for Chapter 103F; and
A purchasing agency's failure to follow any procedure, requirement, or evaluation criterion in a request for proposals issued by the purchasing agency.
(See 3-148-103, HAR and 103F-501 ,HRS)
3.) What matters may not be protested?
Amounts payable;
Awards made under the following methods of procurement
Treatment Purchases of Services
Small Purchases of Services
Crisis Purchases of services
Any other matter not listed under Question 2, "What Matters may be Protested?"
(See Sections 3-148-103, HAR and 103F-501, HRS)
4.) When can a protest be made?
Competitive Method of Procurement (RFP): A protestor may file a notice of protest within five working days of the postmark of the notice of findings and decision, or notice of rejection sent to the protestor.
Restrictive Method of Procurement (Sole Source): A protestor may file a notice of protest by the deadline given in the notice of the restrictive purchase of service.
(See 3-148-103, HAR and 103F-501, HRS)
5) Where are protests to be submitted?
The notice of protest must be submitted to the procurement officer who handled the protested procurement and the head of the purchasing agency that conducted the procurement.
Competitive Method of Procurement (RFP): The names and addresses of the procurement officer and the head of the state agency are located in the RFP for the protested procurement in Section 1, Administrative Overview under Protests.
Restrictive Method of Procurement (Sole Source): The public notice for the Restrictive Purchase of Service will contain all necessary information for filing a protest.
(See Sections 3-148-301, HAR, 3-148-303, HAR, and 3-148-305, HAR)
6) How are protests to be submitted?
Protests shall be submitted by United States mail or hand delivery. If mailed it shall be considered submitted on the date it was postmarked by US mail (United States Postal Service). If hand delivered, it shall be considered submitted when actually received.
Please note: It is the responsibility of the protestor to ensure the timely submission of protests in the proper manner. Deliveries by private mailing/courier services shall be considered hand deliveries and considered submitted when actually received.
(See Sections 3-148-301, HAR, 3-148-303, HAR, and 3-148-305, HAR)
SPO >Procurement of Health and Human Services > Protests > General Procedures
Resolution by Mutual Agreement
Protests may be resolved by mutual agreement at any time in the protest process utilizing any of the allowable methods for resolution.
Any resolutions by mutual agreement shall be in writing and signed by both parties.
(see 3-148-202, HAR)
Allowable Methods for Resolving a Protest
The methods available for resolution of a protest whether by mutual agreement, or decision of the head of a purchasing agency or by the decision of the chief procurement officer in the case of a request for consideration can be one or any combination of the following:
Amending or canceling the request for proposals;
If a contract has been awarded, terminating the contract or declaring the contract null and void from the time of its award;
Initiating a new process to award the contract either by reopening the evaluation process or issuing a new procurement;
Affirming the purchasing agencies decision; or
Dismissing the protestor’s protest.
(See 3-148-202, HAR, 3-148-306, HAR, and 103F-501, HRS)
Conduct of the Head of the Purchasing Agency and Communication with the Head of the Purchasing Agency During a Protest
During the resolution of a protest the head of a purchasing agency acts as an impartial party. If the head of the purchasing agency cannot be impartial due to a conflict of interest or other good cause, the head designates another state employee to act in his or her place.
Neither the protestor nor the procurement officer in charge of the protested procurement may communicate with the head of the purchasing agency on matters regarding the protest without first informing the other party. The head of the purchasing agency may not communicate with either the protestor or the procurement officer for the protested procurement as to the merits of the protest without first informing the other.
(See 3-148-504, HAR)
Once a Notice of Protest has been submitted within the required timeframe, the award is suspended and no further action to make the award may be taken including but not limited to:
Execution of a contract;
Delivery of services in anticipation of execution of a contract ;
Negotiations or discussions with a provider regarding an intended award or contract.
In certain circumstances, the chief procurement officer may waive the suspension of award based on the following:
Award of the contract without delay is necessary to protect the health, safety or welfare of a person from an imminent and serious threat;
Brief factual description of the current situation, and how a delay would create an imminent and serious threat;
A determination that the purchasing agency’s lack of planning has not caused the necessity of the award delay;
A determination that the waiver of suspension has not been granted in order to frustrate the fair and speedy resolution of the protest.
(See section 3-148-501, HAR)
All protests shall be made in compliance with Chapter 3-148, HAR.
See section 3-148-103(c), HAR
Questions? Contact:
Mara Smith at 808.587.4704 or mara.smith@hawaii.gov
or
Corinne Higa at 808.587.4706 or corinne.y.higa@hawaii.gov.
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