The purpose of this section is to summarize the Office of the State Comptroller's (OSC) Contract Award Protest Procedures ("Protest Procedures") to be used when an interested party asserts1 to OSC that the State Comptroller should not approve a contract award by a state agency2.
The objective of the State procurement process is to facilitate each agency’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 state agency’s contract award. Contracting agencies are strongly encouraged to establish agency protest procedures and provide notice of their protest procedures, if established, in their solicitation documents. Agencies 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 Procedures apply to all contract awards subject to the approval of the State Comptroller according to Section 112 of the State Finance Law, or otherwise submitted to OSC for approval, including but not limited to:
As described below and as set forth in such Protest Procedures, there are two types of protests that may be filed with the State Comptroller: (1) an appeal of a protest decision made by the procuring agency; and (2) a direct protest to the State Comptroller.
Initial Protest Filed with OSC
Where the contracting agency has an established protest procedure, and has provided notice of such procedure in the solicitation documents, a protest generally should be filed initially with the contracting agency. The interested party should exhaust these remedies prior to protesting the award to OSC. However, an interested party may file an initial protest with OSC after the contracting agency has made a contract award where: (i) the contracting agency does not have a written protest procedure; (ii) the contracting agency has not provided notice of its protest procedure in the solicitation document; or (iii) 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 contracting agency.
The protest must be in writing and filed with OSC within ten business days of notice of the contract award, although this ten day requirement may be waived by OSC. If the interested party is not provided with notice of the contract award, the interested party may file a protest with OSC at any time after the contract award and prior to OSC’s approval of the contract.
Appeal of Agency Protest Determination
Where a protest has been filed with a contracting agency, any interested party may file an appeal of the contracting agency’s determination with OSC within ten business days of its receipt of the agency protest determination, although this ten day requirement may be waived by OSC. The appeal must be in writing and must be served on the contracting agency, the successful bidder (unless the successful bidder is the appealing party), and any other party that participated in the protest conducted by the contracting agency. However, even where no appeal is filed with the State Comptroller, as part of its review of a contract award, OSC 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 procedures 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 an Agency Protest Determination.
1"Interested party" means a participant in the procurement process and those whose participation in the procurement process has been foreclosed by the actions of the contracting agency.
2"State agency" means: (i) all State departments, boards, commissions, officers or institutions, as well as the City University of New York; and (ii) any public authority, public benefit corporation, or other quasi-public entity that submits its contracts to OSC for its 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.”