As competition for contracts with U.S. federal government agencies increases, companies that seek to maintain or increase their government sales may set their sights on states instead. Indeed, this may already be happening: for one thing, more than 500 people attended the "How to Market to State Governments" conference held in March by the National Association of State Procurement Officials ("NASPO"), a record for the event. While seeking new business opportunities is generally a good thing, contractors accustomed to the way things work at the federal level should understand that state-level procurements can be a very different game. Bid protests at the state level can be especially tricky, not only for disappointed bidders, but for awardees as well. Contractors should take certain proactive measures when participating in state-level procurements to secure their chances for award.
According to a 2012 NASPO survey, only six states had at that time completely adopted the Model Procurement Code developed by the American Bar Association. Nineteen states and the District of Columbia had "partially adopted" the Code, and 23 had not adopted it (three states – Illinois, New Mexico, and Rhode Island – didn't respond to the survey). What this essentially means is that states are all over the map when it comes to procurement rules – including how to challenge a procurement or its results. A 2013 NASPO survey further demonstrates sharp differences, not only in the actual procedures state governments follow for bid protests (which are helpfully included in the survey's appendix), but also in how state procurement officials view the bid protest process. For example, since the late 1990s, Massachusetts apparently has had no bid protest process, because it determined there was "no significant value" to such a process. And the number of NASPO survey respondents who praised protests for being fair checks on flawed contract awards was nearly the same as the number who declared protests are merely an opportunity for losing offerors to express their dissatisfaction.
These sentiments, along with our recent experiences pursuing and defending against state-level bid protests, suggest that contractors accustomed to selling at the federal level would be well advised to include three protest-oriented tactics in their state-level procurement strategies:
- First, understand whether any process exists for protesting the kind of contract sought, and the specifics of the process (particularly the timelines and deadlines, and whether they are based on calendar days or business days)
- Second, learn at least the recent history of the subject contract, whether it involves political issues or sensitivities, and if so, the identities of the key government players and interested parties
- Third, have a post-award communications strategy that includes social media as well as more traditional outlets
Of course, no contractor wants to approach a competition focused on what it will do if it loses. In our experience, however, the above tactics may be required even if one wins a state-level contract. As the saying goes, the best defense is a good offense. Unless one is qualified (and fortunate) enough to win a contract in Massachusetts, one's procurement strategy should include strong offensive and defensive measures.
This article is presented for informational purposes only and is not intended to constitute legal advice.