Government Contract Bid Protest

GOVERNMENT CONTRACT BID PROTEST

State of North Carolina

OVERVIEW OF NORTH CAROLINA PROCUREMENT PROTEST LAW

North Carolina's procurement protest procedures are governed by N.C. Gen. Stat. § 143-48 et seq. (Article 3 of Chapter 143), the rules of the Division of Purchase and Contract within the Department of Administration, and the administrative regulations at 01 NCAC 05B .1519. Protests are filed with the State Purchasing Officer ("SPO") for procurements exceeding an agency's general delegation or with the agency executive officer for procurements under general delegation. North Carolina provides a structured administrative protest process, with appeal rights to the Office of Administrative Hearings ("OAH") under the Administrative Procedure Act (N.C. Gen. Stat. § 150B).

Key Statutory and Regulatory Framework

FILING REQUIREMENTS AND DEADLINES

Deadline to File Protest

Thirty (30) calendar days from the date of the contract award. The vendor must submit a written request for a protest meeting within this period.

Protest Meeting

If a protest meeting is granted, it must be conducted within thirty (30) calendar days from receipt of the protest request, unless a different date is mutually agreed upon.

Decision After Meeting

The SPO (or agency executive officer) must notify the protester of the results within ten (10) calendar days after the protest meeting, along with information regarding appeal rights.

Who May File

Only a "vendor" -- defined as a contractor, supplier, bidder, company, independent contractor, firm, corporation, partnership, individual, or other entity that submitted a response to the solicitation at issue -- may file a protest. The vendor must have submitted a response to the procurement.

Where to File

For procurements exceeding agency delegation:
Division of Purchase and Contract
State Purchasing Officer
Department of Administration
116 West Jones Street
Raleigh, North Carolina 27603

For procurements under agency general delegation:
The executive officer of the contracting agency

STANDING REQUIREMENTS

To have standing to file a bid protest in North Carolina, the protester must demonstrate:

☐ The protester is a "vendor" as defined in the procurement regulations

☐ The protester submitted a timely response to the solicitation at issue

☐ The protester has a direct economic interest affected by the award decision

☐ The protest is filed within 30 calendar days of the contract award

Note: A party that did not submit a bid or proposal in response to the solicitation lacks standing to protest the award.

GROUNDS FOR PROTEST

Check all grounds that apply:

☐ The solicitation contained unduly restrictive or ambiguous specifications

☐ The evaluation criteria were not applied as stated in the solicitation

☐ The contracting agency failed to follow competitive bidding requirements under N.C. Gen. Stat. § 143-52

☐ The award was made to a vendor that did not submit the lowest responsible bid

☐ The awardee failed to meet mandatory qualification or responsibility requirements

☐ The contracting agency engaged in unequal treatment of vendors

☐ The agency conducted improper discussions or negotiations with one or more vendors

☐ The agency failed to disclose material information equally to all vendors

☐ The protester's bid was improperly rejected as nonresponsive

☐ The awardee's bid contained material deviations that should have resulted in rejection

☐ The contracting agency violated applicable procurement statutes or regulations

☐ A conflict of interest or appearance of impropriety affected the award

☐ The agency failed to follow its own published procurement procedures

☐ Other: [________________________________]

FORMAL BID PROTEST DOCUMENT

BEFORE THE STATE PURCHASING OFFICER / [AGENCY EXECUTIVE OFFICER]
DIVISION OF PURCHASE AND CONTRACT
DEPARTMENT OF ADMINISTRATION, STATE OF NORTH CAROLINA

REQUEST FOR BID PROTEST MEETING

I. INTRODUCTION

This Protest is submitted by [________________________________] ("Protester" or "Vendor") pursuant to 01 NCAC 05B .1519 and N.C. Gen. Stat. § 143-48 et seq., challenging the contract award decision under Solicitation No. [________________________________] issued by [________________________________] ("Agency"). The Protester hereby requests a protest meeting with the State Purchasing Officer [or Agency Executive Officer] and respectfully requests that the award be reviewed and corrective action taken.

II. IDENTIFICATION OF PROTESTER

III. TIMELINESS OF PROTEST

This Protest is filed within thirty (30) calendar days from the date of contract award as required by 01 NCAC 05B .1519. The contract award was made on [__/__/____], and this Protest is submitted on [__/__/____], which is the [____] calendar day following the award date.

IV. STANDING

Protester has standing to file this Protest because:

☐ Protester submitted a timely bid/proposal in response to the Solicitation on [__/__/____] and is therefore a "vendor" within the meaning of the procurement regulations.

☐ Protester has a direct economic interest that is adversely affected by the challenged award decision.

Protester's submission was received by the Agency and is identified as [________________________________] (reference or bid number, if applicable).

V. IDENTIFICATION OF PROCUREMENT

VI. STATEMENT OF FACTS

Set forth a clear, chronological narrative of the relevant facts:

1. On [__/__/____], the Agency issued Solicitation No. [________________________________] seeking [________________________________] (description of goods or services).

2. The solicitation established the following evaluation criteria: [________________________________].

3. On [__/__/____], Protester submitted its bid/proposal in compliance with all solicitation requirements.

4. A total of [____] responses were submitted by the following vendors (if known): [________________________________].

5. On [__/__/____], the Agency notified Protester that the contract had been awarded to [________________________________] ("Awardee").

6. [________________________________]

7. [________________________________]

8. [________________________________]

(Continue as necessary. Attach additional pages if needed.)

VII. SPECIFIC GROUNDS FOR PROTEST

Protester sets forth the following specific reasons for its concern with the award:

Ground 1: [________________________________]

[________________________________]
[________________________________]
[________________________________]

This action violates [________________________________] (cite specific statute, regulation, or solicitation provision).

Ground 2: [________________________________]

[________________________________]
[________________________________]
[________________________________]

Ground 3: [________________________________]

[________________________________]
[________________________________]
[________________________________]

(Add additional grounds as necessary.)

VIII. SUPPORTING DOCUMENTATION

The following documents are submitted in support of this Protest:

☐ Exhibit A: Copy of the Solicitation (or relevant excerpts)

☐ Exhibit B: Copy of Protester's Bid/Proposal (or relevant excerpts)

☐ Exhibit C: Copy of Award Notification

☐ Exhibit D: Correspondence with the Agency regarding the procurement

☐ Exhibit E: [________________________________]

☐ Exhibit F: [________________________________]

IX. REQUESTED RELIEF

Protester respectfully requests the following relief:

☐ That a protest meeting be convened promptly as required by 01 NCAC 05B .1519;

☐ That the contract award to [________________________________] be cancelled;

☐ That the Agency be directed to re-evaluate all proposals in accordance with the stated evaluation criteria;

☐ That the Agency be directed to re-solicit the procurement;

☐ That the contract be awarded to Protester as the highest-ranked responsive and responsible vendor;

☐ That the Agency take other corrective action as follows: [________________________________];

☐ That Protester be awarded its protest preparation costs and reasonable attorneys' fees;

☐ Such other and further relief as the SPO [or Agency Executive Officer] deems just and appropriate.

X. REQUEST FOR PROTEST MEETING

Pursuant to 01 NCAC 05B .1519, Protester hereby formally requests a protest meeting to present its concerns regarding the award decision. Protester requests that the meeting be scheduled within thirty (30) calendar days of receipt of this request.

Protester's representatives who will attend the meeting:

1. [________________________________], [________________________________] (name, title)
2. [________________________________], [________________________________] (name, title)
3. [________________________________], [________________________________] (name, title)

PROTESTER:

ATTORNEY FOR PROTESTER (if applicable):

CERTIFICATE OF SERVICE

I hereby certify that on [__/__/____], a true and correct copy of this Protest and all attachments was served upon the following parties by the method indicated:

☐ Hand delivery
☐ U.S. Mail, postage prepaid
☐ Certified Mail, Return Receipt Requested
☐ Electronic mail

State Purchasing Officer / Agency Executive Officer:
[________________________________]
[________________________________]
[________________________________]

Contracting Agency:
[________________________________]
[________________________________]
[________________________________]

Awardee (if known):
[________________________________]
[________________________________]
[________________________________]

________________________________________
Signature
[________________________________]
Date: [__/__/____]

STAY OF AWARD PROVISIONS

North Carolina law does not contain a specific statutory provision requiring an automatic stay of contract performance upon the filing of a bid protest. The contracting agency retains discretion over whether to proceed with the award during the protest period.

Options for Obtaining a Stay

☐ Request a voluntary stay from the SPO or agency executive officer as part of the protest filing

☐ Seek injunctive relief from North Carolina Superior Court (TRO or Preliminary Injunction)

☐ Request a stay as part of a contested case petition before the Office of Administrative Hearings

Injunctive Relief Requirements (Superior Court)

To obtain injunctive relief, the protester must demonstrate:

1. Likelihood of success on the merits
2. Irreparable injury absent injunctive relief
3. The balance of equities favors the moving party
4. The injunction is not adverse to the public interest

REMEDIES AVAILABLE

Administrative Remedies

• Cancellation of the contract award
• Direction to re-evaluate proposals
• Direction to re-solicit the procurement
• Other corrective action deemed appropriate by the SPO or agency executive officer

Remedies on Appeal (OAH / Court)

• Reversal of the award decision
• Remand for re-evaluation or re-solicitation
• Injunctive relief
• Declaratory relief
• Attorneys' fees in appropriate cases

APPEAL PROCESS

Step 1: Administrative Protest to SPO / Agency Executive Officer

File written protest within 30 calendar days of award. Request a protest meeting.

Step 2: Protest Meeting

Meeting conducted within 30 calendar days of receipt of protest request. Protester presents concerns; the SPO or agency executive reviews the record.

Step 3: Written Decision

SPO or agency executive officer issues written decision within 10 calendar days after the protest meeting, including notification of appeal rights.

Step 4: Contested Case Petition (OAH)

If the protest is denied, the vendor may file a contested case petition with the North Carolina Office of Administrative Hearings ("OAH") under N.C. Gen. Stat. § 150B-23. The petition must be filed within 60 days of the protest decision.

OAH Filing Requirements:

☐ Written petition identifying the petitioner and respondent agency

☐ Statement of the specific contested agency action

☐ Statement of facts supporting the petition

☐ Statement of the relief sought

☐ Filing fee as required by OAH

OAH Hearing Address:
Office of Administrative Hearings
1711 New Hope Church Road
Raleigh, North Carolina 27609

Step 5: Administrative Law Judge Decision

The OAH proceeding follows civil procedure rules under 26 NCAC Chapter 03. The Administrative Law Judge conducts a hearing and issues a final decision.

Step 6: Judicial Review

A party aggrieved by the ALJ's final decision may seek judicial review in Wake County Superior Court under N.C. Gen. Stat. § 150B-43 et seq., filed within 30 days of the final decision.

FILING CHECKLIST

Pre-Filing

☐ Confirm that the protest is being filed within 30 calendar days of the award date

☐ Verify that the protester submitted a response to the solicitation (standing requirement)

☐ Determine whether the procurement exceeds the agency's general delegation (file with SPO) or is within delegation (file with agency executive officer)

☐ Identify and document all grounds for protest with specificity

☐ Gather all supporting documentation

☐ Review the solicitation for any agency-specific protest procedures or supplementary requirements

☐ Consult with qualified North Carolina procurement counsel

Filing

☐ Complete the protest document with all required information

☐ Include specific reasons for concern and supporting documentation

☐ Request a protest meeting in the protest document

☐ Sign the protest (vendor or authorized representative)

☐ Submit the protest to the appropriate official (SPO or agency executive officer)

☐ Serve copies on the contracting agency and awardee (if applicable)

☐ Retain proof of filing date and service

Post-Filing

☐ Monitor for scheduling of the protest meeting (within 30 calendar days)

☐ Prepare presentation materials for the protest meeting

☐ Attend the protest meeting with appropriate representatives and counsel

☐ Await written decision within 10 calendar days of the meeting

☐ If protest denied, evaluate appeal to OAH within 60 days

☐ Consider whether injunctive relief is necessary to preserve status quo

☐ Preserve all communications and procurement records

PRACTICE NOTES

1. Standing Is Strictly Enforced. Only entities that actually submitted a bid or proposal in response to the solicitation may protest. Mere prospective bidders who did not submit a response lack standing under North Carolina law.

2. Two-Tier System. The protest forum depends on the procurement size. For procurements under the agency's general delegation (typically under $100,000), the protest goes to the agency's executive officer. For larger procurements, the State Purchasing Officer handles the protest.

3. Protest Meeting Is Key. The protest meeting is the primary administrative forum. Come fully prepared with all evidence, witnesses, and legal arguments. The written decision typically follows within 10 calendar days.

4. OAH Appeal Is De Novo. Contested case proceedings before OAH provide for a full evidentiary hearing before an Administrative Law Judge. This is a meaningful opportunity to present additional evidence beyond what was considered at the protest meeting.

5. Intervention Rights. The successful awardee may intervene in the protest proceedings under N.C. Gen. Stat. § 1A-1, Rule 24 and N.C. Gen. Stat. § 150B-23(d).

6. Public Records. Consider making a public records request under the North Carolina Public Records Act (N.C. Gen. Stat. § 132-1 et seq.) for procurement-related documents, including evaluation scoring sheets and committee deliberation records.

7. No Automatic Stay. Be prepared to seek injunctive relief if continued contract performance would cause irreparable harm during the protest process.

SOURCES AND REFERENCES

• N.C. Gen. Stat. Chapter 143, Article 3 (Purchases and Contracts): https://www.ncleg.net/EnactedLegislation/Statutes/HTML/ByArticle/Chapter_143/Article_3.html
• 01 NCAC 05B .1519 (Bid Protest Procedures)
• NC Department of Administration, Division of Purchase and Contract: https://ncadmin.nc.gov/government-agencies/purchase-and-contract
• NC Office of Administrative Hearings: https://www.oah.nc.gov
• N.C. Gen. Stat. Chapter 150B (Administrative Procedure Act)

This template is provided for informational purposes only and does not constitute legal advice. Procurement law is complex and fact-specific. Consult a qualified North Carolina attorney before filing a bid protest.