COMMENTARY

How to nip those protests in the bud

Jaime Gracia is president and CEO of Seville Government Consulting, a federal acquisition and program management consulting firm.

For acquisition personnel who are working on a contract of any significant dollar value, the fear of a protest is almost palpable. Although protests occur on only a small number of contracts overall, when it comes to contracts worth more than $100 million, a protest is either highly likely or a foregone conclusion.

There are many reasons for this, including the weak economic condition of the federal market, which plays into business decisions by contractors. However, poor communication by federal procurement officials both before and after a contract award seems to be a common denominator, and it often leads contractors to protest as a way of fixing wrongs that in reality never existed.

I addressed this issue on LinkedIn and GovLoop, and the responses were not surprising. The federal procurement officials who responded attributed the problem to risk avoidance as a result of weak leadership support and the conviction that no good deed goes unpunished. For industry, it was a matter of transparency on the part of the government and a lack of confidence in the contract award process.

Nonetheless, the conversation elicited some common ideas for best practices that should be followed in hopes of preventing protests from the outset.

1. Federal procurement leaders should provide more support for contract specialists. Many people agree that the fear of protests leads some contracting officers to be less than forthcoming with information lest that information be used against them. In addition, their performance reviews reflect the number of protests filed. They also feel a lack of guidance from the legal department and management. Those policies need to be revised.

2. Program offices need to improve their processes and procedures, especially when it comes to requirements definitions and evaluation criteria. Too often the requirements and evaluation criteria are overly complex or are written with one company’s experience or capabilities in mind — or both. When a solicitation is wired in that way, the government misses out on possible innovation and cost reductions.

3. The source selection processes, presumably documented in the source selection plan, should be made publicly available. Many contractors see the government's intent for the solicitation only in the instructions to offerors and in the evaluation criteria. Source selection is a process-driven initiative, and transparency is vital to communication and building trust in the contract award decision. That information needs to be made public so contracting officers can walk offerors through the process and let them know why they were not selected for the contract.

4. The value, processes and procedures for debriefing sessions are ripe for review because that is where many protest decisions are made. Many protesting contractors do not see any value in those sessions and certainly do not agree with less-than-transparent decisions. A full accounting of contractor weaknesses, areas for improvement, costs and other factors will lead to confidence in the contract award decision.

Although protests can never be fully avoided, improving transparency and communication could go a long way toward ensuring that protests are not upheld or don’t get filed in the first place. Ultimately, contracting officers need to understand that they are business advisers to their internal and external customers — and that includes industry.

About the Author

Jaime Gracia is president and CEO of Seville Government Consulting, a federal acquisition and program management consulting firm.

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Reader comments

Thu, Mar 1, 2012 Contract Specialst

Gee Vern, hate acquisition personnel much? They must have roadblocked a procurement in a way that follows the rules but you were too lazy or busy to comply. Many in legal only open the FAR to provide 'expertise". Not a lot of help there. CO's have to be careful as to what they say so the contractors won't try to use their perception of the information given, in a protest.

Thu, Mar 1, 2012 Vern Edwards

1. More support. The key problem with source selection is that government acquisition personnel at both the working and management levels do not understand fundamental source selection concepts, rules, and processes. They work in a cut-and-past culture and do not think things through. There is no shortage of guidance from legal. In many agencies, legal determines what can and cannot be done and is a roadblock to simplification. In their defense, they know how little the COs and contract specialists know. 2. Improve processes. Absolutely. Most requirements personnel receive little if any education and training in requirements analysis and source selection planning. That's because too few government personnel know enough to teach them. COs as a class certainly don't know. The government should know more about these things than anyone else, but it doesn't. 3. Information about source selection. There is probably more information available about how the government conducts source selections than about any other government process. Companies always think there is something mysterious going on when in fact there is not. When they lose they suspect skullduggery. More likely they submitted a crummy proposal or the government personnel simply screwed up the process. But it wouldn't matter how much more information were put out -- some companies would still be suspicious. Let's face it -- some companies are run by knuckleheads. Any CO who cannot deliver a good explanation for why a company did not win is incompetent. Whether a company will accept a good explanation is another matter. Some losers will always want to blame someone other than themselves. 4. Debriefings. Debriefings ought to be full disclosure within the limits of trade secret protection. Show them the evaluator write ups. But even if they are disclosed and are sound, many COs would make a hash out of explaining the outcome. And even if the CO didn't, many companies would reject a sound explanation for the simple reason that they did not win.

Wed, Feb 29, 2012 Capture Manager

Most of the time my company only considers a protest if we feel the competition was wired. It may not have been, but if the program office and (especially) the contracting organizations refuse to meet with us, and are not forthcoming about information, we tend to feel the procurement WAS wired. We do respect that a well-performing incumbent has an edge in a procurement; we are only asking for a fair chance to present our capabilities. If the proposal is the first and only time we are allowed to present ourselves, we know our chances of winning are extremely low. Contrators make a huge investment of resources to pursue a bid; protests come when we believe the playing field is not level or that we've been treated merely as "stalking horses" to get the incumbent to reduce their price.

Wed, Feb 29, 2012 Dave

I am not a contracting officer but I have worked in the broad definition areas of Federal procurement, acquisition, and logistics for 12 years. Just some point by point commentary on the article: 1. I couldn't agree more. We need a round table style discussion with complete disclosure of our needs. 2. I disagree...what we really need is just the opposite: the ability to buy what we already know works from companies that already know how to do it instead of propping up this convoluted system to give the appearance of fairness. It wastes everyone's time, effort, and money. This ability would need safeguards to avoid abuse...but it should be an option if there is a compelling interest. 3. I disagree here also...this would just give losing bidders more points to protest over. I would agree with this option if we were given the ability described in #2 above. 4. I agree somewhat, but sometimes the choice is between better and best...so you could theortically tell a vendor they had no "weaknesses" per se...just that someone else was stronger. But then you would have the risk of sharing another companies proprietary information or look like you were playing favorites unfairly...leading to protest.

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