Attorney Kenny Quoted in Lincoln Journal StarNews | August 31, 2018
Thomas Kenny, a partner in Kutak Rock’s Omaha Litigation Department, was recently quoted in the August 27 Lincoln Journal Star article “Is Nebraska open for business? Companies say state’s bidding process flawed.”
The article covers the bidding process in the state and specifically reports on a sole-source contract to update Nebraska’s outdated unemployment systems. According to the article, Nebraska state agencies are required to competitively bid all contracts in excess of $50,000 according to state law. However, when another vendor protested the award, the state rejected the protest, claiming that bid protests may only be filed by vendors that have also submitted bids. Because the contract was not competitively bid, the state refused to allow a protest.
Referring to the state’s competitive bidding process, Mr. Kenny said, “Companies, particularly large technology firms, say Nebraska’s procurement statutes offer little to no recourse if a state agency chooses not to ask for bids, or if the contract is award to ‘an irresponsible or corrupt vendor.’” He also remarked, “Nebraska is one of a minority of states that do not allow companies to ask a judge to review the bidding process. When you have a flawed process like this, it really discourages companies from wanting to do business in Nebraska.”
The story also described last year’s effort at legislative reform of Nebraska’s “flawed” procurement process, and in particular LB 814, which would have provided a narrow avenue of administrative review for certain large state procurement decisions. LB 814, intended to create a more business-friendly regulatory environment for national and local vendors seeking to do business in Nebraska, was sponsored by Senator Paul Schumacher, and included drafting and consultative support from Kutak Rock and testimony by Kutak Rock’s former United States Senator Dave Karnes, as well as written testimony from former Nebraska HHS Director Kerry Winterer and a national technology advocacy group, the IT Alliance for the Public Sector. While LB 814 stalled in committee in 2018, in part due to the short legislative session and pressing budgetary matters, the article indicates that Senator Justin Wayne will attempt legislative reform again during the upcoming session.
Mr. Kenny is Co-Chair of the firm’s national Health Care Litigation Group, and also is Co-Chair of the national Government Disputes Group. Mr. Kenny leads an active contract procurement and bid protest practice, concentrating on state and local contract procurements in numerous areas, including healthcare, technology, transportation, and related disciplines. In the past three years alone, his team has assisted in numerous multimillion dollar procurement matters and bid protests in Nebraska, Iowa, Arkansas, Florida, Missouri, Nevada Michigan and Washington, advocating for both local and national clients.