Pachter: Please, no more scare talk

Steve Kelman’s April 2 column, “The return of the protest,” warns that the information technology community is in danger of returning to the “bad old days” of ubiquitous contract protests. But to what does Kelman attribute this ominous warning? He points to a bill introduced by Sen. Susan Collins (R-Maine) that would allow losing bidders to file protests regarding task orders in excess of $5 million under multiple-award contracts.  The bill would implement a recommendation of the Acquisition Advisory Panel, which was created under the Services Acquisition Reform Act of 2003. The panel reviewed the history of one feature of procurement reform that Kelman referred to as a partnership model. Under that model, the government obligated one-third, or $108 billion, of its contracting dollars without competition in fiscal 2004. It awarded one-fourth, or $98 billion, noncompetitively in fiscal 2005.Kelman trumpets the virtues of a free-market system, but the truth is that government procurement is not so laissez faire. Rather, it is a regulated market, with rules for the protection of taxpayers’ dollars that have no counterpart in a free market. Without effective oversight and review, the urge to cut corners and exhibit favoritism tends to take over. That statement does not impugn the integrity of government officials but instead simply acknowledges human nature.  For many years, the Government Accountability Office has performed its oversight function effectively. GAO serves as a check on improper procurement practices while according great discretion to agencies in their contract awards. It upholds awards unless the protester demonstrates a prejudicial violation of statute or regulation or an award decision lacking a rational basis. Why, then, should anyone object to correcting improprieties?  GAO doesn’t review all procurement awards. It only looks at those that are protested. But the availability of the bid protest forum serves to remind government officials that they should follow the rules. The language of GAO’s decisions also serves as useful guidance for procurement officials. And by spreading the word on good procurement practices, those decisions play a significant role in improving the acquisition system.  But what about delays, costs and inconvenience? The burden imposed by the protest process must be balanced against the need to protect taxpayer dollars from improper spending. The result fully justifies that burden. GAO is required by statute to issue bid protest decisions within 100 days. It can choose to ask for oral testimony, but it decides most cases based on the written record and does not hold a hearing. When hearings do occur, government witnesses are treated with respect and courtesy. Because they have already spent months developing the evaluation record, witnesses typically are well-prepared to explain that record to GAO. Kelman is correct in saying that the best way for a contractor to win business is by satisfying government customers, not suing them. But when competitors have not been treated according to the rules, taxpayers are entitled to a safety valve that provides relief.














Pachter is a partner in Smith Pachter McWhorter, where he represents companies involved in contract litigation.

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