Many contractors are familiar with the well-established processes of federal bid protests. Less known is the dizzying variety of procedures applicable to state and local bid protests. Each jurisdiction has its own rules — in terms of timing, protestable issues, standard of review, document production, and more. A fundamental tenet in one jurisdiction may be completely inapplicable in another.What does that mean for a contractor looking to grow its state and local business? Be prepared: Become familiar with the rules and practices for bid protests in the relevant jurisdiction prior to the award decision. When the award decision is made, you’ll be in a better position to assess whether to protest and, if so, when and how to do it.
Here are a few issues that are often helpful to consider while preparing for a potential state or local protest:
- Timing. Federal bid protests have notoriously aggressive schedules. That may or may not hold true at the state and local level. Some jurisdictions have even faster timing than GAO — both in terms of the deadline to file the initial protest and the deadline for a decision resolving the protest. Other jurisdictions have more leisurely timing — and may not have any deadline for resolving the protest. It is also important to confirm how days are to be counted (e.g., calendar or business days?) and what is the triggering event (e.g., notice of intent to award or actual award?).
- Protestable Issues. There is a relatively small universe of high-rotation arguments in federal bid protests. Viable — and winning — arguments at the state and local level may be different. Some jurisdictions narrowly circumscribe the types of issues that may be protested, and may impose a higher standard of review. For instance, a state or local jurisdiction may require a showing of bad faith — or something else beyond unreasonableness. By contrast, other jurisdictions may permit wide-ranging protest arguments and not impose (or meaningfully apply) an elevated standard of review. For instance, a state or local jurisdiction may take a more relaxed approach to prejudice and not require a protester to demonstrate how an alleged error caused it harm.
- Document Production. Document production can be one of the trickiest aspects of state and local bid protests because there is often no built-in procedure for getting access to the procurement record. Frequently, the protester has no choice but to request the relevant documents through a freedom of information/public records–type request. That presents three major obstacles, however. First, FOIA-type requests often take so long to process that the protest may be over by the time a response is provided. Second, the jurisdiction may have a statute or regulation that prohibits the release of the procurement record until after a protest is over and the award decision is final. Third, the documents that are eventually produced may be redacted past the point of usefulness.
Every state, county, and municipality is different. By being prepared and becoming familiar with the protest procedures early, however, state and local protests can be an important tool in pursuing state and local business and ensuring the propriety of state and local procurements.