Bid protests reappear, but decisions should not cause alarm
- By Steve Kelman
- Mar 01, 1998
After a brief hiatus, bid protests are back in the news. Two years ago, the bid protest jurisdiction of the General Services Administration's Board of Contract Appeals disappeared. Like East Germans with regard to the Berlin Wall, one strains to remember that the GSBCA, once such a towering presence in the lives of the federal information technology community, ever even existed. Gone were the obligatory protest-filing stories that so predictably followed a government contract award.
But two recent IT-related cases have occasioned some remarks about a re-emergence of bid protests as well as a strange comment from one observer who said, "Everyone in industry who is interested in protests was wondering when an agency was going to get caught for overaggressive use of [blanket purchase agreements (BPAs)]."
One would hope that the days of industry being "interested" in bid protest decisions had passed. Most of industry, fortunately, has become focused on something socially more useful than how to obtain customers through litigation, such as showing interest in how to work together with their government customers to create value for the taxpayers.
My own reading of the recent decisions from the General Accounting Office and the Court of Federal Claims is decidedly less apocalyptic. One of the two cases (CCL Inc. v. U.S., U.S. FedCl, No. 97-721C) involved the scope of an indefinite-delivery, indefinite-quantity contract for data center computer services. Under the original contract, BDM Corp. was doing work at Air Force computer centers when the Defense Department transferred the Air Force work, together with computer work for the other services, into l6 computer megacenters run by the Defense Information Systems Agency. DISA tried to give work to BDM at these new interservice megacenters, but CCL, the incumbent at one center, protested. The Court of Federal Claims ruled that combining the work at the megacenters almost tripled the number of work sites that existed in the original contract, and the modification added on new customers in addition to the Air Force, neither of which was anticipated in the original award of the contract. (This was not a governmentwide acquisition contract open to multiple agencies at an undetermined number of sites.) The court criticized DOD for taking "a flexible but structured agreement" and making it "into an empty vessel into which it can pour all its future needs." Fair criticism.
The other case (Comark Federal Systems Inc., GAO B-278343) involved a delivery order under a Health Care Financing Administration BPA for desktop workstations. HCFA initially had established BPAs for computer equipment with four vendors after conducting a competition among six GSA schedule holders. Comark was one of the four BPA winners. When HCFA proceeded to compete the workstation order among the four vendors, it didn't say anything about how it would evaluate bids. GAO stated that although an agency competing work under a BPA does not need to "identify detailed evaluation criteria, it must indicate, at a minimum, the basis on which the selection is to be made." This doesn't sound like being caught for "overaggressive" use of BPAs.
Those who are licking their chops at these decisions should look at two other recent GAO decisions that involve issues of current relevance and with less legal precedent. One of these decisions upholds a NASA procurement (Sytel Inc., GAO B-277849.2) in the area of oral presentations in the source-selection process. In the protested procurement, NASA evaluators, during oral presentations by key personnel for the bidding vendors, were more impressed with the cohesiveness of the winning vendor's team.
The protester's score was lowered "due to the apparent lack of teamwork" displayed during the presentation. GAO upheld NASA's ability to use its judgment in downgrading the protester for that reason. This decision breaks new ground, and it does so in a way that is favorable to sensible flexibility and the government's ability to use business judgment. In the old days, such subjectivity would have been frowned on.
In the other decision, which involves an area that has been in the news (Aalco Forwarding Inc., GAO B-27724l.12), GAO upheld the decision of the Military Traffic Management Command to consolidate contract requirements for household moving to achieve better prices and service, against protests from small businesses.
Here's the bottom line: There remains in place a structure of basic rules for the procurement process that agencies still need to— and should— follow. It all comes down to what I have heard my colleague, Dee Lee, procurement executive at NASA, say: "Tell 'em what you're going to do and then do it." If the government follows that simple advice, would-be protesters won't have much luck.
-- Kelman was the administrator of the Office of Federal Procurement Policy from 1993 to 1997. He is now Weatherhead Professor of Public Management at Harvard's Kennedy School of Government.