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Monday, August 20, 2012

Protests at State and local levels

State bid protests: new incentives and traps for the unwary by James C. Cox and Damien Specht of US law firm Jenner & Block
Largely because they provide for a more neutral evaluation of award decisions, protests have emerged as a staple of federal government contracting. In 2011, 2,353 cases were filed in the Government Accountability Office alone, an increase of more than 100% from ten years earlier. For most experienced contractors, an adverse award decision in a significant procurement almost always results at least in a conversation about whether to protest.

When competing for state contracts, however, considering a possible protest is not yet second nature for most contractors. Even among established firms, some might not know that states even have their own bid protest processes. Just as at the federal level, there is little reason to pass up the opportunity for a second opinion on the propriety of a procurement without due consideration.

In response to an increase in interest and the public’s desire for transparency, state protest processes have become more sophisticated. Consequently, in many states, the agencies designated to hear bid protests appear to be getting at least a little closer to what the GAO and the Court of Federal Claims do for federal contracts — providing a real check on flawed or anti-competitive awards.

At the same time, the states remain laboratories of democracy and have developed a wide variety of protest procedures. The most important thing to realize about state level protests is that no two systems are exactly the same. As a result, it is impossible to provide a one size fits all guide to state protests. There are, however, a number of areas where state protest practice in general diverges from, for example, protests before the GAO that may constitute traps for the unwary.

Read their tips and traps at the link above.

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