(a) As used in this section:

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Terms Used In Tennessee Code 12-3-514

  • Appeal: A request made after a trial, asking another court (usually the court of appeals) to decide whether the trial was conducted properly. To make such a request is "to appeal" or "to take an appeal." One who appeals is called the appellant.
  • Central procurement office: means the government agency established in §. See Tennessee Code 12-3-201
  • Chief procurement officer: means the person holding the position established in §. See Tennessee Code 12-3-201
  • Committee: means the state protest committee as established in §. See Tennessee Code 12-3-201
  • Common law: The legal system that originated in England and is now in use in the United States. It is based on judicial decisions rather than legislative action.
  • Contract: A legal written agreement that becomes binding when signed.
  • Contract: means any duly authorized and legally binding written agreement for the procurement of goods and services. See Tennessee Code 12-3-201
  • Damages: Money paid by defendants to successful plaintiffs in civil cases to compensate the plaintiffs for their injuries.
  • Discovery: Lawyers' examination, before trial, of facts and documents in possession of the opponents to help the lawyers prepare for trial.
  • Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
  • Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
  • Litigation: A case, controversy, or lawsuit. Participants (plaintiffs and defendants) in lawsuits are called litigants.
  • Person: includes a corporation, firm, company or association. See Tennessee Code 1-3-105
  • Procurement: means buying, purchasing, renting, leasing, or otherwise acquiring of any goods or services. See Tennessee Code 12-3-201
  • Procurement commission: means the state procurement commission, as established in §. See Tennessee Code 12-3-201
  • Record: means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in a perceivable form. See Tennessee Code 1-3-105
  • Respondent: includes a "bidder" or "proposer" that is a natural person or legal entity that has properly registered as required by the state. See Tennessee Code 12-3-201
  • Response: means a written response to a solicitation for goods and services. See Tennessee Code 12-3-201
  • Services: means all services and agreements obligating the state, except services for highway and road improvements governed by title 54 and design and construction services governed by title 4, chapter 15. See Tennessee Code 12-3-201
  • signed: includes a mark, the name being written near the mark and witnessed, or any other symbol or methodology executed or adopted by a party with intention to authenticate a writing or record, regardless of being witnessed. See Tennessee Code 1-3-105
  • Solicitation: means any type of document that invites responses and may include, by way of example, an "invitation to bid" a "request for proposal" or a "competitive negotiation". See Tennessee Code 12-3-201
  • State: when applied to the different parts of the United States, includes the District of Columbia and the several territories of the United States. See Tennessee Code 1-3-105
  • State agency: means any state governmental entity, other than the central procurement office and those state entities exempted by §. See Tennessee Code 12-3-201
  • Writ of certiorari: An order issued by the Supreme Court directing the lower court to transmit records for a case for which it will hear on appeal.
  • written: includes printing, typewriting, engraving, lithography, and any other mode of representing words and letters. See Tennessee Code 1-3-105
(1) “Protest” means a written objection by a respondent, as defined in § 12-3-201, challenging a solicitation, an award, or a proposed award of a contract; and
(2) “Protesting party” means a respondent, as defined in § 12-3-201, who has filed a protest.
(b) Any respondent who has submitted a response to a solicitation authorized under this chapter and who claims to be aggrieved in connection with the solicitation, award, or proposed award of a contract may protest to the chief procurement officer. The protest shall be submitted in writing within seven (7) calendar days after the earlier of the notice of the award or intent to award the contract is issued. Any issues raised by the protesting party after the seven-day period to protest shall not be considered as part of the protest. A protest based upon the cancellation of a solicitation, in whole or in part, is not actionable and must not be considered. A protest may be filed electronically or by hard-copy with the chief procurement officer, subject to the policies and procedures adopted by the procurement commission. A protest filed electronically must be considered timely upon successful transmission. Upon receipt of a protest of a solicitation, award, or proposed award of a contract, and a protest bond as required in subsection (d), a stay of the solicitation, award, or proposed award shall be in effect until the protest is resolved as provided under this section.
(c) The signature of an attorney or a protesting party on a protest constitutes a certification by the signer that the signer has read the protest and that to the best of the signer’s knowledge, information, and belief, formed after reasonable inquiry, the protest 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 for any improper purpose, such as to harass, limit competition, or cause unnecessary delay or needless increase in the cost of the procurement or of the litigation. If a protest is signed in violation of this subsection (c), then the chief procurement officer or protest committee, upon motion or upon its own initiative, may impose upon the person who signed the protest, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties, including the affected state agency, the amount of the reasonable expenses, including reasonable attorneys’ fees incurred from the filing of the protest.
(d) A party who submits a protest to the chief procurement officer, or who submits an appeal of a protest decision to the protest committee, must contemporaneously submit a protest bond. Without a contemporaneously submitted protest bond, such a protest or appeal is not actionable. As determined by the chief procurement officer, a protest bond must be payable to this state in the amount of:

(1) Five percent (5%) of the lowest bid or cost proposal evaluated;
(2) Five percent (5%) of the maximum liability or estimated maximum liability provided in the solicitation;
(3) Five percent (5%) of the estimated maximum revenue, if the solicitation, award, or proposed award is for a contract in which this state receives revenue; or
(4) For no-cost contracts, an amount to be determined by the chief procurement officer.
(e) The protest bond shall be in form and substance acceptable to the state and shall be surrendered to the state after the protesting party has had an opportunity to oppose the payment of the protest bond and after a finding by the chief procurement officer or the protest committee that:

(1) The protest was signed, before or after appeal to the chief procurement officer or protest committee, in violation of subsection (c);
(2) The protest has been brought or pursued in bad faith;
(3) The affected state agency has suffered damages resulting in a loss of funding, increased expenditures, or a disruption in services; the protest was filed in bad faith or in violation of subsection (c); and the protest was not upheld;
(4) The protest did not state on its face a valid basis for protest; or
(5) For any other reason approved by the chief procurement officer or the protest committee.
(f) The chief procurement officer shall hold the protest bond for at least eleven (11) calendar days after the date of the final determination of the protest by the chief procurement officer. If a protesting party appeals the chief procurement officer’s determination to the protest committee, then the chief procurement officer shall hold the protest bond until instructed by the protest committee to either keep the bond, as set forth in subsection (d), or return it to the protesting party.
(g) At the time of filing a notice of a protest of a solicitation, award, or proposed award of a contract in which the estimated maximum liability, estimated maximum revenue, or lowest evaluated cost proposal is less than one million dollars ($1,000,000), a minority-owned business, woman-owned business, Tennessee service-disabled veteran-owned business, business owned by persons with disabilities, or small business, as those terms are defined in § 12-3-1102, may submit a written petition for exemption from the protest bond requirement of subsection (d). The petition may be submitted electronically or by hard-copy, subject to the policies and procedures adopted by the procurement commission. The petition shall include clear evidence of status as a minority-owned business, woman-owned business, Tennessee service-disabled veteran-owned business, business owned by persons with disabilities, or small business. After receipt of the petition by the central procurement office, the chief procurement officer has seven (7) calendar days in which to make a determination. If an exemption from the protest bond requirement is granted, then the protest shall proceed as though the bond were posted. If the chief procurement officer denies an exemption from the protest bond requirement, then the protesting party shall post the protest bond with the chief procurement officer as required in subsection (d) within five (5) calendar days of the determination.
(h) The chief procurement officer, in consultation with the head of the state agency, has authority to resolve the protest. The chief procurement officer shall resolve the protest within sixty (60) calendar days after a protest is filed. The final determination of the chief procurement officer shall be made in writing and submitted to the protesting party, the protest committee, and the comptroller of the treasury. A petition for exemption from the requirement to post a protest bond under subsection (d) may be submitted electronically or by hard-copy, subject to the policies and procedures of the procurement commission. If the chief procurement officer fails to resolve the protest within sixty (60) calendar days, then the protesting party may request that the protest committee meet to consider the protest. The chief procurement officer shall provide the minutes of the protest proceedings to each committee member and to the comptroller of the treasury and shall post the final determination within fifteen (15) business days to the website of the central procurement office. A request for consideration before the protest committee shall be made in writing within seven (7) calendar days from the date of the chief procurement officer’s final determination or within seven (7) calendar days following the chief procurement officer’s failure to resolve the protest within sixty (60) calendar days after receipt of the protest. The protest committee shall resolve a request for consideration within sixty (60) calendar days of receipt of the request for consideration.
(i) A stay made pursuant to subsection (b) shall not be lifted unless, after giving the protesting party an opportunity to be heard, the chief procurement officer or the protest committee makes a written determination that continuation of the procurement process or the award of the contract without further delay is necessary to protect the interests of the state.
(j) Nothing in this section requires a contested case hearing as set forth in the Uniform Administrative Procedures Act, compiled in title 4, chapter 5. A protesting party shall exhaust all administrative remedies provided in this section prior to the initiation of any judicial review of a protest.
(k) If a protest is received by the state subsequent to a contract executed pursuant to a procurement process, then the Tennessee claims commission has exclusive jurisdiction to determine all monetary claims against the state, including, but not limited to, claims for the negligent deprivation of statutory rights pursuant to § 9-8-307(a)(1)(N).
(l) Protests appealed to the chancery court from the protest committee shall be by common law writ of certiorari. The scope of review in the proceedings shall be limited to the record made before the protest committee and shall involve only an inquiry into whether the protest committee exceeded its jurisdiction, followed an unlawful procedure, or acted illegally, fraudulently, or arbitrarily without material evidence to support its action. Supplementation of the record of the protest and the protest committee and any discovery relating thereto, is expressly prohibited unless mutually agreed to by the parties.
(m) The procurement commission is authorized to promulgate necessary rules in accordance with the Uniform Administrative Procedures Act, as well as policies and procedures, to implement this section.
(n)

(1) A protesting party must show by clear and convincing evidence that the facts and grounds set forth in the protest warrant either of the following actions by the chief procurement officer:

(A) The award of a contract to a protesting party; or
(B) The cancellation of a solicitation, whether in whole or in part.
(2) A protest filed pursuant to this section is not actionable if the protest is based upon the following grounds, in whole or in part:

(A) Variances in scoring, absent proof of prejudice or bias by a member of the evaluation panel;
(B) Allegations of violations of ethical standards and policies, including conflicts of interest or organizational conflicts of interest, absent proof of an actual violation or proof of an existing conflict of interest or organizational conflict of interest that has not been disclosed to and resolved by the chief procurement officer as set forth in the rules, policies, and procedures of the central procurement office and the procurement commission;
(C) An objection to a solicitation made prior to the award of a contract or intent to award a contract and based on facts known to a protesting party, unless notice is given to the central procurement office during the procurement process; or
(D) Clarifications to solicitations, as approved by the chief procurement officer.
(o) A protesting party lacks standing to protest the award of a contract or intent to award a contract if the protesting party failed to do any of the following:

(1) Follow the terms of the solicitation;
(2) Submit a response or other required documents, samples, descriptive literature, or materials in the manner and by the time and date specified by the solicitation or by the solicitation coordinator;
(3) Post a protest bond in the amount and form required by the chief procurement officer; or
(4) State all the facts and grounds supporting a protest of a solicitation authorized under this chapter.
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