A bid for protest sanity

The latest case of a bid protest against a multibillion-dollar award — the highly prized information technology infrastructure contract at the Transportation Security Administration — prompted our colleague Nick Wakeman to ask a simple but pertinent question: What gives?

Wakeman, writing in the Editor’s Notebook blog at Washington Technology, was not criticizing the decision of Unisys and General Dynamics to protest TSA’s award to Computer Sciences Corp. He just wanted to know why such protests are becoming more frequent than ever after several years of decline.

The number of protests filed with the Government Accountability Office jumped 17 percent between fiscal 2007 and 2008, according to a December 2008 report. Part of that can be attributed to an increase in GAO’s jurisdiction. But even if you take that out, Wakeman notes, that still leaves a jump of 10.9 percent, which followed an increase of 6 percent the year before. In contrast, the number of protests had declined 2 and 9 percent in the preceding years.

“So what happened? Did contractors suddenly become sore losers?” Wakeman writes. “Or is there something else at work when executives make the decision to protest?”

One possibility is that vendors have decided that filing a protest makes good business sense, whether there is just cause or not. Earlier this year, Robert J. Guerra, a partner at consulting firm Guerra and Kiviat, was horrified to receive an e-mail advertising a seminar titled “A Successful Bid Protest Can Produce a Contract Win.”

“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,” Guerra wrote in a Federal Computer Week column. “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.”

That seminar was not unique. A quick search of the Web turned up a similar seminar, scheduled for November, titled “Bid Protests: How to Keep the Deals You Win and Get the Ones You Lose.” According to the site, the 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.”

House and Senate leaders are getting involved because they are concerned that many protests might be delaying vital government programs on the flimsiest of pretexts. In the report on the fiscal 2009 Defense Authorization Act, lawmakers directed GAO to assess the trend in bid protests and consider measures that might “disincentivize frivolous and improper bid protests.”

However, GAO officials responded by arguing that the risk of frivolous protests was the lesser of two evils.

In a statement submitted to Congress, GAO General Counsel Gary Kepplinger wrote that well-meaning attempts to ward off such protests “may have, on balance, the unintended consequence of harming the federal procurement system by discouraging participation in federal contracting and, in turn, limiting competition.”

Such debates ignore another possibility altogether: Protests might be on the rise with good reason. Several commenters to Wakeman’s blog suggested that many problems stem from sloppy work by undertrained acquisition officials.

The numbers support this possibility, if not the specific cause. In a February report, the Congressional Research Service noted that the percentage of successful protests also was on the rise, from 33 percent in 2001 to 42 percent in 2008.

As researchers wrote, “The increase in the effectiveness rate could indicate that not only are the number of protests increasing but the number of protests that have merit is increasing.”

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Reader comments

Wed, Nov 4, 2009 Jaime Gracia Washington, DC

I completely agree with the posts on the reasons for protests, but we also need to consider another factor that needs to be addressed. That is, there are little to no consequences for companies to protest, whether it is for one contract or many. This needs to change. Although I am not advocating for industry to lose the right to protest, there does need to be a balance of accountability to the taxpayers. The way the system is structured now, firms can protest at will without having to reimburse the Government if they lose, or reimburse the Government for damages, lost time, and expenses for defending the protest. In essence, there are no consequences to protests. Although protesting from a business perspective is not a trivial matter in regards to time and costs, it does seem to be a business as usual approach due to increased opportunities for launching a protest, and the return on investment for winning. In fact, the current system encourages companies to protest since there are no consequences for being wrong. The focus on adherence to process, training, and leadership are critical to alleviating this continuing problem.

Tue, Nov 3, 2009

Been both a DOD person reviewing and for the last 30 years, one that is subbmitting Proposal. HERE is the easy answer" The majority of the Government people writing and trying to evaluate the proposals are not competent to do it"...Harsh as that may seem it is the truth. You also need to look at what % are winning the protests, I believe what you will see if a FAR greater number of protest WINS, Protests cost lot's of money and are NOT done lightly, unless you really feel that you did not get a fair shake so to speak...The posted comment is very true. In the old days the people knew what they were doing. Most places had a "proposal eval shop" with the BEST OF THE BEST.. anybody remember AFCAC/FEDCAC... never lost a protest. Hanscom AFB in the 70's-almost 90...Never lost a protest...Now we have people in the government who could not tell a section L&M from an RFI..Go back to having the ones who know how to do this.. Form places where you put the people who know how to write and evaluate a proposal and let them do it..Too many rice bowls for that I am afraid...

Tue, Nov 3, 2009 Clem Munno

There are more protests for two reasons: 1) Although Contracting Officers (CO) are delegated all the authority to award contracts, technical leadership has more management authority and can intimidate a CO and influence contract decisions that expose the Government to protests; and, (2) Government kicked all the old-timers out and chose the untrained, "innovative" young folks who just don't know how to manage large deals. You think it would be pretty simple to write evaluation criteria into an RFP that you intend to follow. However, you will find that most of the protests that are sustained are because the Government did not follow their own rules or process. Someday, OFPP and the Congress will come to the realization that COs need to be well trained and mentored into large deals rather than award them signature authority based on training that is done by people who never awarded contracts. You need people with good business training and judgement to spend the large dollars in major acquisitions and the authority without opportunity of others who can coerce them into making wrong decisions. Department IGs have become the same as sensational news commentators rather than the "watch-dogs" of the people who will remove those who do not have the capability to perform. All they do now is give them another project to destroy. Projects will continue to be protested until you replace arrogance and ignorance with knowledge and fairness.

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