No excuse for frivolous protests

Congress passed legislation in 2007 to allow protests on task orders under multiple-award contracts. Most industry officials opposed the legislation, fearing that allowing protests in the task-order environment could lead to significantly increased costs and uncertainty. In the end, Congress didn’t agree, but decided to permit task-order protests only on contracts worth more than $10 million beginning in May 2008.

The Government Accountability Office reported in December that there already have been 87 protests on task orders. Interestingly, GAO sustained about 21 percent of the protests, which is slightly lower than has been the norm in recent years. But the numbers are only a part of the story.

Many in government and industry say the threat of protests is having more than the intended effect. Although some believe that the potential for a protest keeps the government honest, many are reporting an over-reaction on the government side — a palpable resistance to doing much more than straightforward, low-bid, by-the-numbers procurements to make them protest-proof. That is a disturbing trend because it threatens to significantly diminish the critically important discriminators that often tell more about the potential for a bidder to perform exceptionally than anything else. We might now be heading into yet another, even more disturbing phase.

I recently came across a marketing piece from a company that I will not name. It is offering seminars designed to help companies take advantage of bid protests as a marketing tool. The e-mail was titled “Use the Bid Protest Process to Win and Defend Contracts.” The seminar was explained as a way to “give federal salesmen and sales managers the information that they need to use the bid protest process as part of a successful sales strategy.” Frankly, I found the e-mail offensive.

Protests provide a means of redress for companies that believe the government failed to follow its rules and procedures and, as a result, made an award that is not in the government’s best interests. After all, the fundamental objective of the acquisition process is to find the answer that is in the government’s best interests, regardless of who wins. Protests have never been intended to be, nor should they be allowed to become, a marketing tool. One would have to be naïve to think that that never happens. Of course, any company competing for work in the federal market must be fully aware of its rights and the rules so it does not suffer unfair losses. Without question, when the rules are not followed, the government must be held accountable. But suggesting that the protest process is or should be part of a deliberate sales strategy is something else altogether.

GAO is undertaking an analysis to determine what percentage of recent protests could be considered frivolous. The results will be most interesting and informative. Of course, the more people take advantage of seminars such as the one described, the more likely that the percentage of frivolous protests will be higher than it should be. But frivolous protests are not good for anyone and only add cost, unneeded delays and risk to an already challenging process. Indeed, in the absence of genuine errors or omissions by the government or an abject failure by the government to offer appropriate information through the acquisition cycle, including debriefings, protests should be avoided. Perhaps that would be a good way to think about the seminar as well.