Bid protests on statewide and local public procurements in Arizona are allowed, in one form or another, if an unsuccessful offeror has both “standing” and a basis for protest. Protestors can seek to be awarded the contract or to have the solicitation thrown out and reissued, which in many cases is itself a success.
But winning a bid protest in Arizona is not easy. The process is designed to move quickly to promote efficient contracting and to limit protests. Failure to meet any of the strict procedural requirements can lead to outright dismissal or waiver of an argument. Even when a protester properly follows the procedure, the applicable legal standard is a high one. To win a protest in Arizona, a protestor needs to demonstrate that an award decision was “clearly erroneous, arbitrary and capricious or an abuse of discretion.”
The question is what does it take to win an Arizona protest? Here are four steps that can maximize a protester’s chance of success.
Step one—move quickly
Whether they win the award or not, any company that responds to an Arizona RFP, IFB, or RFI should be thinking ahead about what happens after award. The deadline for protesting an award decision by the state of Arizona is 10 calendar days. The deadline for protests of local public procurements can be even shorter. With very limited exceptions, protests must be filed by the deadline and must state both the factual and legal grounds for the protest. Any argument not included in a protest is usually rejected unless there is “good cause” for the delay.
Given the short deadlines, an offeror considering a protest should immediately obtain a copy of the procurement file to determine all grounds upon which a protest may exist. Counsel should be involved in this task to ensure that the entire file (not just parts the agency wants to provide) are obtained and considered.
A potential protestor should consider seeking an extension of time to file the protest, but should assume that a requested extension will not be granted. Arizona agencies generally will not extend protest deadlines without good cause, which usually means admitting they made an error. Since agencies have a strong incentive to keep procurements moving quickly, the sooner you begin, the more likely you will be successful. Don’t wait for a debriefing!
Step two—strictly comply with the procedural rules
A successful protest in Arizona will strictly comply with all of the applicable protest procedures. Failure to do so will, in most cases, result in rejection of your protest. Each governmental entity in Arizona has slightly different rules for a protest and appeal of a protest decision. In almost all cases, a protester needs to comply with all of those rules in order to prevail. Engaging experienced counsel early in the process will give you the best chance of satisfying those technical requirements.
Step three—include all potential arguments in the initial protest letter
A successful protest also requires a valid substantive basis be advanced for the protest. Given the deferential standard of review in Arizona, public agencies have significant discretion in making decisions on procurements. Because it may be difficult to determine at the outset whether a specific ground of protest has merit, protesters should strive to include all available grounds in the initial protest letter. This includes technical issues with the solicitation, process issues related to how the agency oversaw the procurement or evaluated proposals, and other legal and factual issues that may be relevant to whether an award decision is proper.
It is also important to recognize that the issues that may seem most important on the surface are not always the ones that win. Sometimes the technical argument on process is the one that prevails when the agencies’ attorney reviews a protest. Sometimes the lack of an appropriate license disqualifies another offeror. Sometimes the procurement officer just made a mistake in how they handled the procurement, but would prefer to grant the protest on a technical basis that allows them to avoid addressing the more substantive issues you raise in a protest. Since most protestors’ primary goal is to have the protest upheld, including all potential grounds for protest in the protest letter is important.
Step four—have a political strategy
Even when there are technical, factual, and legal arguments supporting a protest, it is wise to engage a representative who has a personal relationship with the state or local entity. A lobbyist can act as a softer touch than a protesting party and gain valuable information from an agency about how that agency is looking at a protest or a procurement in general and may be able to assist in getting an agency to revisit a decision outside of the formal protest process.
It is of course important to comply with any applicable rules against lobbying during a procurement (such as those in the City of Phoenix) and to take steps to preserve attorney-client privilege while involving a lobbying firm during such engagements. But this can usually be accomplished and is worth the effort.