As the public-private partnership (“PPP”) market matures, more and more companies will be disappointed bidders and look to challenge PPP solicitations and awards. Accordingly, companies competing in the PPP market should be familiar with the general aspects of the bid protest process as well as potential issues that can give rise to protest grounds. Companies should thus be aware of the standards and procedures governments are required to follow when conducting competitive procurements. The key thing to remember is that the government is expected to conduct an open, fair and transparent competition – any departure from this standard should be examined closely as it may provide a ground for protest.
With that as background, companies interested in PPPs should become familiar with what specific laws must be incorporated into the solicitation according to controlling law of the jurisdiction; such as prevailing wage laws, domestic or local preferences, bonding requirements, etc. Interested parties should review carefully the terms of the solicitation and respond by submitting a statement of qualifications, proposal or bid, depending on the type of solicitation issued. Furthermore, PPP companies should ensure that the process is conducted according to the terms of the solicitation and request debriefings from the government entity managing the competition should they lose. This will help determine if grounds for protest exist. Companies should also become familiar with any jurisdictional requirements they would need to follow in order to file a protest.
As PPPs grow in popularity, companies unfamiliar with the bid protest arena should be aware of the avenues they have to protest the process and award. In addition to understanding the applicable laws and regulations for the government conducting the PPP competition, companies should pay close attention to the terms of the solicitation and any guidance it may provide about filing a protest. Again, should the process appear to depart from the standards set forth in the solicitation or applicable laws and regulations, there could be grounds for a protest. Our team has a lot of experience in this area, so please give us a call if you need any help.