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.”