In Nevada’s competitive public procurement landscape, contractors and vendors invest substantial time and resources to secure government contracts. When a bid is unsuccessful — especially when there’s a suspicion of procedural errors or unfair treatment — the Nevada Revised Statutes (NRS) provide a formal avenue for challenge.
Understanding the Bid Protest or “Appeal” Process under NRS 333.370
Nevada law allows a person who submitted an unsuccessful bid or proposal to file an “appeal” challenging the contract award. However, strict deadlines and procedural requirements apply.
1. Timing Is Critical
An appeal must be filed within 11 days of the date of award as listed in the bid record. This timeline is generally non-negotiable and begins the moment the bid award becomes public.
2. Filing Requirements
The appeal process starts by submitting a notice of appeal to both the Purchasing Division and the Hearings Division of the Department of Administration. This notice must contain a written statement detailing the alleged violations of NRS Chapter 333.
3. Mandatory Security Deposit
To discourage frivolous appeals, Nevada law requires the appellant to post a bond or provide other approved security. The amount must equal 25% of the total value of the successful bid. If the contract value is based on estimates, 25% of the estimated value is used instead. This security is held until a final determination is made. If the appeal is rejected and the award is upheld, a claim may be made against the bond or other security by the Purchasing Division in an amount equal to the expenses incurred or other monetary losses suffered by the Purchasing Division and procuring agency.
4. Contested Hearing
A contested hearing must occur within 20 days of the notice of appeal. The successful bidder must also receive notice and has the right to intervene and participate. The procedures of the contested hearing, including notice provisions, contents of the appeal, avenues of informal disposition, contents of the record, standards of review, standards of proof, and requirements for the final decision are detailed in NRS 233B.121 and 233B.125.
The record for a contested hearing must include, at minimum:
- All pleadings, motions and intermediate rulings.
- Evidence received or considered.
- A statement of matters officially noticed.
- Questions and offers of proof and objections, and rulings thereon.
- Proposed findings and exceptions.
- Any decision, opinion or report by the hearing officer presiding at the hearing.
The hearing officer will issue a determination within 60 days, which must be in writing and include findings of fact and conclusions of law.
5. Grounds for Cancellation
Importantly, the hearing officer may only cancel a contract award if there is a finding of non-compliance with NRS Chapter 333. A cancellation of the award requires a new award in compliance with the procurement Chapter 333.
6. Automatic Stay and Limitations on Legal Action
Once an appeal is filed, it operates as a stay — halting further action on the contract until a decision is rendered. Additionally, judicial review is generally not available until the administrative process concludes.
7. Emergency Purchases
While the appeal is pending, the state is allowed to make temporary open-market purchases to meet urgent needs, minimizing disruption to public services.
8. No Liability for Damages
Even if an appeal is successful, the statute explicitly shields the state and its agents from liability. This includes attorneys’ fees, lost income, and other costs incurred by the unsuccessful bidder.
Final Thoughts
If you’re considering a bid protest or appeal, it’s advisable to consult legal counsel early to assess the merits of your case and navigate the complex procedural framework. Please do not hesitate to contact Aron Beezley or Nathaniel Greeson if you have any questions about the foregoing.