The Features of Bid Protest Systems and Their Adoption Across the United States
Open AccessState governments across the United States will potentially award an unprecedented number of contracts over the next decade, in part because federal funds from the Infrastructure Investment and Jobs Act will become available through grants and other programs. Bid protests remain a critical component of public procurement because they enable contractors to act on the public’s behalf as private attorneys general to ensure that acquisition officials and other contractors adhere to procurement laws and comply with source selection procedures. Bid protests have a long history in the United States as part of procurement in the federal government. However, a 2013 report released by the National Association of State Procurement Officials revealed that no two states have adopted the same bid protest procedures – and some states have no formal bid protest procedures at all. Reducing bid protest systems to their key features facilitates comparisons of bid protest systems across all states, the District of Columbia, and Puerto Rico, to determine to what degree different jurisdictions incorporate bid protests into their procurement systems. This survey reveals a spectrum of systems, across which some states maintain robust bid protest procedures comparable to the federal system and others rely on informal exchanges between contractors and agencies, or on the courts, to “resolve” complaints. The degree of variation among jurisdictions reveals that the benefits of a bid protest system remain an open question at the state level, and that further study may reveal what financial (and political) risks states incur because of adopting robust or minimal bid protest procedures.
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