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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

Ranked by Chambers USA among government contracts practitioners, Kayleigh Scalzo represents government contractors in bid protests and other high-stakes litigation matters with the government and other private parties. She has litigated bid protests in a wide variety of forums, including the Government Accountability…

Ranked by Chambers USA among government contracts practitioners, Kayleigh Scalzo represents government contractors in bid protests and other high-stakes litigation matters with the government and other private parties. She has litigated bid protests in a wide variety of forums, including the Government Accountability Office, U.S. Court of Federal Claims, U.S. Court of Appeals for the Federal Circuit, FAA Office of Dispute Resolution for Acquisition, federal and state agencies, and state courts.

Kayleigh a co-chair of the American Bar Association Public Contract Law Section’s Bid Protest Committee. She is also a frequent speaker on bid protest issues.

Kayleigh maintains an active pro bono practice focused on immigration issues and gender rights.

Photo of Jay Carey Jay Carey

Recognized by Chambers as one of the nation’s top bid protest lawyers and government contracts practitioners, Jay Carey represents clients in complex, high-stakes government procurements often worth billions of dollars. He is a vice-chair of the firm’s Government Contracts practice group and a…

Recognized by Chambers as one of the nation’s top bid protest lawyers and government contracts practitioners, Jay Carey represents clients in complex, high-stakes government procurements often worth billions of dollars. He is a vice-chair of the firm’s Government Contracts practice group and a co-chair of the Aerospace, Defense, and National Security industry group.

Jay has won bid protests collectively worth more than $100 billion, for clients across a range of industries — including aerospace & defense, energy, healthcare, biotechnology, cybersecurity, IT, and telecommunications. He litigates protests before the U.S. Government Accountability Office (GAO); the Court of Federal Claims (COFC); and state tribunals across the country. A list of his recent wins can be found under the “Representative Matters” tab.

In addition, Jay advises clients on compliance matters, conducts internal investigations, and defends against investigations by federal and state agencies. He also counsels clients on matters related to the formation of government contracts, including organizational conflicts of interest and the protection of intellectual property rights when entering into procurement contracts, grants, cooperative agreements, and “Other Transaction Authority” agreements with the government.

Jay serves as co-chair of the American Bar Association Public Contract Law Section’s Bid Protest Committee.