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CONTRACTUAL ISSUES REGARDING THE PURCHASE OF AN AFIS 239

A belief that insufficient information was provided as part of the RFP can
also form the basis for complaints about the procurement. This can be espe-
cially true regarding the evaluation criteria and the relative weight of each
factor. As stated before, it is imperative that the RFP clearly communicate the
expectations and requirements for the acquisition.
The government’s failure to follow the procedures and requirements set
forth in the RFP is another area of vulnerability. Following the procedures and
requirements is critical to the underlying concept of fairness. The complaint
can take different forms but ultimately comes back to disparate treatment of
the vendors, either through omissions or malfeasance.
One of the most important things a government can do in support of its pro-
curement effort is to document its decisions and its processes. Documentation
existing prior to the issuance of the complaint can establish the government’s
good faith decision making and demonstrate that there was no intent to harm
a vendor and that its decision comports with legal requirements.

9.9 HOW PROBLEMS AND COMPLAINTS
ARE MADE KNOWN

A vendor can complain about the solicitation process in a number of forums.
Depending on the governmental entity issuing the procurement, the vendor
may complain to the executive branch, the legislative representatives, or the
control agencies. This process tends to be an informal, but effective, mecha-
nism. Action regarding the complaint takes different forms depending on the
jurisdiction.
Many entities have established informal or formal administrative processes
to address bid problems, often referred to as bid protests or dispute resolution
procedures. Bid protests can be set forth as a part of the RFP or as a separate
regulation generally applicable to procurement that is referenced in the RFP.
The RFP should identify the information, including all the relevant factual and
legal documentation that must be submitted as part of the protest. The proce-
dure can establish time frames for instituting the protest.
Bid protests present an economical way to protect the rights of bidders and
ensure the integrity of the procurement process. While there are many possi-
ble reasons for submitting a bid protest, generally the protest needs to estab-
lish a relationship between the action complained of and some impact on the
vendor. For example, the federal government has a very formalized and defined
procedure for handling bid protests as part of the Federal Acquisition Regula-
tions. (See FAR set forth at 48 CFR Subpart 33.) Bid protests can be submitted
to the procuring agency or to the federal General Accounting Office. While the