Guerra: Bid protests as a business strategy

In a recent column in FCW I suggested that maybe it was time we as a community came together to figure out why there are so many protests of information technology acquisitions lately. Well, the answer came in my e-mail the other day. Some company is actually conducting a seminar titled “A Successful Bid Protest Can Produce a Contract Win.”

Yes, for a mere $350, the e-mail states, “This seminar will give federal salesmen and sales managers the information that they need to use the bid protest process as part of a successful sales strategy. The seminar is unique in teaching protests from the salesman's perspective.”

They go on to say that there are “types of losses that you should almost always protest.” Not that you should only protest when you believe that a procurement was improperly conducted, or that the request for proposals was intentionally structured to award to a particular company irrespective of their real ability to perform. No, they suggest, we should protest based upon the type of loss you experience.

It is appalling that in a time when government acquisition personnel are under increased stress to conduct ever more complex acquisitions, we as a community should seek ways to protest more contract awards. It isn’t bad enough that we already have protests that in many cases are “fishing expeditions.” Now we want sales reps and managers pursuing protests as a way to make their quotas.

From the seminar summary, one would think that all one needs to do is file a protest and that nothing serious happens. Well, sure, submitting a protest is easy and not too expensive. The initial document, if properly structured by outside counsel, can cost your company as little as $10,000. But it’s that cumbersome thing called discovery, which leads to reviews, revisions and updates to your protest, that ends up costing you hundreds of thousands of dollars.

You also run the risk of alienating your customer, which must deal with the program delays and spend hundreds of thousands of dollars to defend its award decision.

How about an alternative seminar? Maybe one that says “Protest a contract award only when you are absolutely certain that a procurement was unfairly conducted and you are sure that the protest is not disrupting a mission critical function.”

I think I’ll take my $350 and donate it to the National Institutes of Health's Children’s Inn. That seems a much more worthwhile investment.

Guerra is a partner at the consulting firm Guerra and Kiviat.

About the Author

Robert J. Guerra is a partner at the consulting firm Guerra and Kiviat.

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Reader comments

Fri, Oct 23, 2009 Mike Del-Colle

Using protests as a business strategy reminds me of some shady, greasy,ill-fitting suit low life who wants to use trickery and misrepresentation to gain entry into an event they are not qualified to attend. We do a disservice to and dishonor the acquisition workforce and process when we trivialize a legitimate business tool, which should be used sparingly, as if it were an everyday hammer. I am not against protests [when I was in the Government I actually thought they could be a good thing] - but I am fiercely opposed to protests as a form of business spaghetti - throw it against the wall and see what sticks. I do think we need to make better use of IDIQ ombudsman in task order competitions when unsuccessful offerors believe the Government has deviated from their stated acquisition strategy.

Fri, Oct 23, 2009 t1234 Washington DC

This is a subject that should be conisdered in any legislation for contract reforms. There are a few companies who are trolling for business and not detered by the stigma of frivolous protests. The playing field is not level, for while it might cost the protestor a few thousand, the cost to the government to assess and dismiss a blatently firvolous protest is at least ten times the filing cost. That the playing field isn't quite even is a burden the government duly faces; however the resulting high cost of doing business is our tax dollars at work.

Wed, Apr 8, 2009 James

Mr. Guerra -- Thank you for speaking out through this article. Yet, two months later, I just received my e-mail for an NCMA-sponsored seminar on precisely the same topic ($75 NCMA member rate with breakfast included - what a deal). "Our expert instructors will identify key issues and offer valuable tips and information regarding how to make effective use of the bid protest process to maximize business for your company." I don't think NCMA is doing the Government any favors. No wonder COs have become so risk averse in their jobs ...

Wed, Feb 25, 2009 Mark Boster DC Metro

Thanks Bob for raising this aricle. As someone who has been involved in protests from both the Government and Commercial side, I certainly do not believe these decisions should be made by business development people. A decision to protest needs to be made at the highest levels of the company without emotions. Well founded factual protests are part of the the procurement process and should be encouraged. Protests that are frivolous waste time, resources, and damage relationships with the organization; especially when GAO stops work on the effort. We have all seen a number of high profile protests result in awards and these outcomes have fueled the protest fires. Giving a protesting company an award is the path of least resistance for the agency but only serves to encourage more protests. We are all better served when government runs a procurement without errors and protests are allowed to run their course.

Tue, Feb 24, 2009 Joe the Contractor

Many major DOD vendors use the protest strategy. If they are the incumbent and lose a re-compete, they protest to keep the business going under an extension on the incumbent contract. Secondly, many a contract are written for the incumbent, as sole source award or no-bid (Haliburton ring a bell). Air Force contract being completely reissued due to incompetent contracting officers. As for Mr. $350, he is in the seminar business. If his pitch brings in people looking to cut corners or learn a new strategy and his marketing pitch works, good for him.

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