Are agencies to blame for most bid protests?

During our Defense Opportunities event last week, the subject of bid protests and procurement delays came up.

I have a fascination with bid protests because of the insights they give into agency decision making and the great window they provide of who is bidding on what and who’s winning or losing.

Our panelists, Kevin Plexcio of Deltek and former QinetiQ North America CEO Duane Andrews, definitely don’t envision protests decreasing anytime soon.

And while we all hear stories of companies that have embraced bid protests as part of their strategy, Plexico and Andrews laid most of the blame for the increase in protests on the shoulders of the agencies and their poor evaluations and source selection decisions.

Plexico did say he thought the Government Accountability Office could tighten its procedures to shorten the time it takes from the filing of a protest until GAO makes a decision.

Right now, GAO has 100 days to make a decision. If that time were shorter, the impact of the delays could be lessened.

I’m sure there is room for greater efficiency, but GAO will need more people, I think, if they are to move faster. Right now, I count 26 attorneys working on 399 protests. That’s a pretty healthy workload.

But mostly, Plexico and Andrews talked about the need for better decision making by agencies as they make their contract awards, which sent me back to the GAO website to look at its 2013 annual report on bid protests.

The most common mistake GAO sees are:

• Failure to follow the evaluation criteria
• Inadequate documentation for the record
• Unequal treatment of offerors
• Unreasonable price or cost evaluation

Of the 2,429 cases filed with GAO, only 509 reached the decision stage. Of the 509, only 87 were sustained decisions, where the agency lost the protest.

So, generally, when an agency decides to fight a protest, it wins and the company loses.

But look at those numbers again. Of the 2,429 cases, 1,740 never made it to a full GAO decision. While some protests were withdrawn by the company, the vast majority were dismissed by GAO because the agency took some sort of corrective action.

In other words, the protester was able to point out a mistake the agency made that convinced the agency that it couldn’t stand up to GAO scrutiny. The better course is to pull back and rethink the decision.

This is where the delays come. We’ve seen a year or more get added to procurements because of protests and corrective actions, and then more protests. Sometimes, it seems like a vicious cycle.

Andrews made a good point in that until agencies make better decisions that are easier to defend, we’ll continue to see a lot of bid protests. When companies lose more than win, and I count corrective actions as a win for companies, then we’ll start to see a decrease in the number of protests.

In defense of the agencies, there is a resource issue. There aren’t enough people with enough experience running these procurements.

Fixing that problem will take years and a lot of will, but the time and effort should be worth it because a better procurement system will have benefits well beyond reducing the number of bid protests.