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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.

Photo of Kayleigh Scalzo Kayleigh Scalzo

Kayleigh Scalzo advises clients on an array of contracting and procurement issues, and has litigated bid protests in both the U.S. Court of Federal Claims and the U.S. Government Accountability Office.

Photo of Jay Carey Jay Carey

A Chambers-rated government contracts practitioner, Jay Carey focuses his practice on bid protests, and regularly represents government contractors before the U.S. Government Accountability Office and the Court of Federal Claims. He has prosecuted and defended more than 80 protests, including some of…

A Chambers-rated government contracts practitioner, Jay Carey focuses his practice on bid protests, and regularly represents government contractors before the U.S. Government Accountability Office and the Court of Federal Claims. He has prosecuted and defended more than 80 protests, including some of the most high-profile protests in recent years, for clients in the aerospace and defense, biotechnology, healthcare, information technology, and telecommunications sectors. Mr. Carey also counsels clients on compliance matters and all aspects of federal, state, and local government procurement and grant law. He counsels clients extensively on organizational conflicts of interest (OCIs) and on strategies for protecting and preserving intellectual property rights (in patents, data, and software).