The purpose of this section is to summarize the Office of the State Comptroller's (OSC) Contract Award Protest Procedure ("Protest Procedure"), found at Part 24 of Title 2 of the New York Codes, Rules and Regulations, to be used when an interested party1 asserts to OSC that the State Comptroller should not approve a contract award by a public contracting entity2.
The objective of the State procurement process is to facilitate each public contracting entity’s mission while protecting the interests of the State and its taxpayers and promoting fairness in the contracting community. To this end, it is important that interested parties be provided an opportunity to raise their concerns about the legal and/or factual basis of a public contracting entity’s contract award. Public contracting entities are strongly encouraged to establish their own protest procedure and provide notice of their protest procedure in their solicitation documents. Public contracting entities subject to Section 163 of the State Finance Law are required to advise in their solicitation documents of the opportunity for an unsuccessful offerer to seek a debriefing3, notify non-selected bidders in writing or electronically that their offer is unsuccessful, and provide timely debriefings.
The Protest Procedure applies to all contract awards subject to the approval of the State Comptroller as required, or provided for, by law, resolution or otherwise, including but not limited to:
As described below and as set forth in such Protest Procedure, there are two types of protests that may be filed with the State Comptroller: (1) an appeal of a protest decision made by the public contracting entity and (2) a direct protest to the State Comptroller.
Initial Protest Filed with OSC
Where the public contracting entity has an established protest procedure, and has provided notice of such procedure in the solicitation documents, a protest generally must be filed initially with the public contracting entity. However, an interested party may file an initial protest with OSC’s Bureau of Contracts (BOC) after the public contracting entity has made a contract award if: (1) the public contracting entity has not provided notice of its protest procedure in the solicitation document; or (2) the facts that give rise to the protest are not known to, and could not have been reasonably known to, an interested party prior to the date by which a protest was required to be filed with the public contracting entity.
The protest must be in writing and filed with BOC within ten business days of notice of the contract award or if a debriefing has been requested by the interested party, within five business days of the debriefing (whichever is later). If the interested party is not provided with notice of the contract award, the interested party may file a protest with BOC at any time after the contract award and prior to the Comptroller’s final action on the contract.
The protest must be filed with:
Charlotte Davis, Director
at email@example.com or
Bureau of Contracts
New York State Office of the State Comptroller
110 State Street, 11th Floor
Albany, NY 12236.
Appeal of Public Contracting Entity Protest Determination
Where a protest has been filed with a public contracting entity, any interested party may file an appeal of the public contracting entity’s determination with BOC within ten business days of its receipt of the agency protest determination. The appeal must be in writing and a copy must be delivered to the public contracting entity and the successful bidder (unless the successful bidder is the appealing party in which case a copy of the appeal must be delivered to the original protesting party), and any other party that participated in the protest conducted by the contracting agency. However, even where no appeal is filed with BOC, as part of its review of a contract award, BOC will review the allegations raised in the protest and the contracting agency’s determination.
Protests of OSC Procurements
Protests concerning procurements undertaken by OSC must initially be filed with the OSC Director of Financial Administration according to OSC’s procedure for protests of OSC procurements. An interested party that wishes to appeal a determination made by the OSC Director of Financial Administration may file an appeal in the manner described for an Appeal of a Public Contracting Entity Protest Determination.
1"Interested party" means a participant in the procurement process, and those who can establish that their participation in the procurement process was foreclosed by the actions of the public contracting entity and have suffered harm as a result of the manner in which the procurement was conducted.
2"Public contracting entity" means: any State agency, department, board, commission, office or institution; the State University of New York; the City University of New York; or any public authority, public benefit corporation, or other public or quasi-public entity that is awarding, or has awarded a contract subject to the Comptroller’s approval.
3SFL §163(9) (c) states, in part, “A state agency shall, upon request, provide a debriefing to any unsuccessful offerer that responded to a request for proposal or an invitation for bids …. A debriefing shall be requested by the unsuccessful offerer within fifteen calendar days of release by the state agency of a notice in writing or electronically that the offerer's offer is unsuccessful.”