POST AWARD DISPUTES - 1704

Definition

A post award dispute is a disagreement or conflict between a contractor and a department after a purchase document has been executed.  Most often, contract disputes arise due to contract performance issues on the part of either the contractor or the State.

Occurrences

Disputes can occur in any purchasing category.  It makes no difference whether the purchase document was the result of a competitive solicitation, LPA order, or an NCB contract.

Disputes may also result from not having a clear understanding of the State’s General Provisions, purchase document terms and conditions, Special Provisions, or when a Statement of Work is not clearly defined or contains conflicting provisions or ambiguities.

Buyer Responsibility

Buyers are the eventual contract managers responsible for monitoring the contractor’s performance after award.  However, in many departments, buyers do not conduct daily or regular oversight of every contract.  That responsibility usually falls to an IT project manager, or some other person closely associated with the project.  In this case, the buyers will advise the person to administer the contract in accordance with the terms and conditions by notifying the contractor of problems immediately.  In the event of a dispute, documentation must be maintained of any performance problem, its resolution, or unresolved problems.  The buyer is to use a cure notification process to start the resolution process.

Dispute Provisions

For Information Technology, the contract terms found in General Provisions Information Technology (GSPD-401IT), Article #44-Disputes provide suppliers with the process for disputing contract administration after an award has been executed.

For non-IT commodities, the DGS/PD general provisions provide bidders with the process for disputing after an award has been executed.  This language is found in the General Provisions – Non-IT Commodities (GSPD-401), Article #38-Disputes.

Deal in Good Faith

Buyers should deal in good faith with suppliers/contractors when encountering a dispute and attempt to resolve potential disputes informally at the lowest level.

Whenever a dispute occurs, conflicts should be resolved as quickly and fairly as possible, as disputes are disruptive and can be expensive to all parties to the contract.

Note:  As stated within the General Provisions for Non-IT Commodities (GSPD-401) or Information Technology (GSPD-401IT), the contractor agrees to continue performance of the contract pending final resolution of the dispute.  Failure to do so is considered a material breach of the contract.

Resolving Disputes

Disputes shall be documented in the procurement file.  When informal discussions and negotiations fail to render a satisfactory resolution for all parties:

1. All conflicts or disagreements that affect contract performance shall be documented.
2. Discussions shall occur with all principals (contractor, buyer, contract administrator, project manager, etc.) involved in the conflict.
3. Review dispute language contained within the General Provisions and any additional contract provisions that may impact the dispute.
4. Every effort shall be made to reach an agreement that is acceptable to all participants.
5. Written summaries of the major points of the dispute shall be prepared.
6. The State cannot gift public funds, and must ensure that any monies or settlement are reasonable, legal, and justifiable.
7. Department management and/or department legal counsel shall be involved, as appropriate.  For the DGS/PD buyer, the DGS/OLS attorney and the DGS/PD/DR staff shall be involved.
8. If the dispute resolution:
   • Requires clarification or change to the purchase document, an amendment to document the action shall be prepared and processed expeditiously
   • Is unsuccessful, then the contractor must submit a written demand for final decision to the department director or designee.  The contractor’s written demand must present all facts of the dispute and be signed by a company officer.
9. The department director or designee shall render a final decision within a timely manner not to exceed 90 days from receiving the bidder’s demand.
10. If the supplier is not satisfied with the department’s final decision, then the supplier may appeal the decision to the DGS/PD/DR for resolution at any time in the process.  Either party to the dispute may invoke the Disputes clause.