OPINION

What the NFL teaches us about bid protests

With the Super Bowl just days away, it is worth asking the question: What lessons can the National Football League teach the world of federal contracting?

In the NFL a coach can challenge a call on many plays. The referee has sixty seconds to review instant replays and decide. Thecoach is allowed two challenges, and forfeits a time-out when one is not upheld. This restrains the number of challenges.

Why not apply the same concept to bid protests?

According to the General Accountability Office, from fiscal 2008 through fiscal 2013 bid protests on defense contracts climbed by 50 percent, but only one-fifth were sustained. GAO closed over half of the protests within thirty days; remaining ones were resolved within 100 days.

Although the protest process is fair, the high percentage of protests that are not sustained suggests the costs to government are high. How can they be reduced? 

First, just as football teams analyze past games in detail, meaningful post-award debriefings are vital.  GAO should enforce the practice. 

This will encourage losing bidders to pull back weak protests. In 2011 a hard-fought contest for the sale of air refueling tankers to the Air Force led to a Boeing win.  The competitor, EADS, filed a protest but withdrew it once the Air Force explained the reasons for the award.

  A blue-ribbon commission of the Professional Services Council found that in recent years the quality of post-award debriefings has declined “dramatically.” The Office of Management and Budget emphasizes "early, frequent, and constructive" industry engagement.  The commission recommends that agency leaders require “substantive and interactive" debriefings, comparable to what a legal discovery process reveals.

Second, in designing procurements, agencies should take more advantage of industry ideas to improve their solicitations.  This also will reduce the likelihood of protests.

The PSC commission found that rarely did agencies tell industry how its responses to pre-solicitation requests influence award decisions. This discourages potential bidders from offering thorough responses.  The commission praised pre-award information sharing by the General Services Administration as it developed a $10 billion contract for professional services, One Acquisition Solution for Integrated Services, or OASIS.

Third, agencies will reduce protest risks by upgrading their acquisition workforces and giving chief information officers more sway over complex IT procurements.  These steps will increase the quality of solicitations and evaluations.

A December 2012 PSC survey found that both federal acquisition leaders and younger professionals share a “deep concern” that despite policy changes and investments, the “skills and capabilities of the workforce have not improved.”  Investments in this crucial workforce should be sharply increased.
 
Fourth, shortcomings in acquisition skills and tighter budgets sometimes cause agencies to award complex contracts based on low-cost-technically-acceptable, or LPTA, criteria.  Agencies may calculate that such awards are less likely to be protested because subjective factors play a smaller role in selecting the winner. 

While LPTA awards may reduce some protest risks, simplified contracting can increase costs to the government from inadequate contractor performance if complex task are involved.  Not long ago DoD used LPTA criteria to award a large IT program that will be deployed widely and must operate with many other systems.

Fifth, buying IT on an as-a-service basis with payment only for services used, common in cloud computing, is a commercial best practice. Yet, federal buying rules and acquisition workforce training, required to make best use of this business model, are sometimes inadequate.  This, too, can increase the risk of award protests.

In an earlier era federal contractors were disinclined to protest, so as not to offend clients.  These days the gloves are off.

The NFL challenge process keeps both coaches and referees on their toes.  An updated playbook for federal procurement can do likewise. 

Agencies should upgrade their acquisition workforces, and be more open.  To improve solicitations agencies should meaningfully engage contractors, and they in turn ought to provide strong feedback.

Reader Comments

Fri, Jan 31, 2014 Glen Senkowski

This would be a great analogy if the NFL had $35B riding on a bad call like KC-X. At last check, the entire NFL was worth $35B. You don't think they would pull out the protest stops if someone tried to shut them down?

Fri, Jan 31, 2014

I agree with Just Saying that if the contractor looses the protest it should pay a fixed amount to the government for the protest. This will disincentivise the contractor from filing the protest unless it is serious issue with the award. This will also help the government as well as winning contractor in planning the transition adn work force.

Fri, Jan 31, 2014 Jaime Gracia Washington, DC

The value, processes and procedures for debriefing sessions are ripe for review because that is where many protest decisions are made. Many protesting contractors do not see any value in those sessions and certainly do not agree with less-than-transparent decisions. A full accounting of contractor weaknesses, areas for improvement, costs and other factors will lead to confidence in the contract award decision. This entails full transparency to have confidence in the contract award decision, but the fear of protests and the "no good deed goes unpunished" attitudes are pervasive in this environment. Further, accountability on both sides of the fence is needed as well, but the fact is that many protests are seeking corrective action to have another shot at an award. Almost half of protests end this way, so why not protest?

Fri, Jan 31, 2014 Just Sayin'

If a company lodging a protest were forced to repay the government for the government's expenses incurred to respond to the protest, the would REALLY drive down the number of spurious protests.

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