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By Nick Wakeman

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Nick Wakeman

The good, bad and ugly of bid protests

A review of the comments to my blog asking about the increase in bid protests shows varying degrees of cynicism and outrage.

Some are blaming corporate greed, while others targeted poor government practices. Many are asking some of the same questions I have – what’s really behind the increase?

As Rich Wilkinson wrote: “More protests are being filed, but percentage-wise, even more are being dismissed without a substantive review. And, even fewer are successful. That tells me that protests as a strategy are not about prevailing, they're about gaining some other kind of advantage. The question is ... What?”

One commenter seemed the answer that question when he wrote that protests are a way of gaining intelligence. BF wrote: “Even an unsuccessful protest gains a company infinitely more insight as to why they lost. Those lessons can be invaluable on the next attempt.”

But greed was a theme of several commenters.

From Anonymous:
“They are just doing this for spite and to milk the government for more money while they can.”

From Interested Party:
“Firms are being advised by their legal staff that they should protest if they are the incumbent because the government has come to rely on the service and that they will get a contract extension while the case is resolved. There is so little cost associated with lodging the initial protest that they have no skin in the game, other than the profits they will get from a year or so extension.”

Several commenters also laid the blame with the government.

An anonymous commenter: “The government could avoid some protests simply by providing an in-person, thorough debriefing. This is not the case on enough occasions, notwithstanding FAR requirements. When the government cannot explain its rationale for an award, one must protest to get to the bottom of the story.”

Another anonymous commenter: “Protests are increasing because, with too few able federal contracting officers, chronic weakness in the government's ability to state its requirements clearly, and frequent departures from the stated evaluation criteria by decision-makers, there is more reason to question and protest procurement decisions.”

We’re continuing to cover this topic, including a new piece today on the bid protest process. Don’t hesitate to join the discussion.

Posted by Nick Wakeman on Oct 26, 2009 at 9:53 AM

Reader Comments

Tue, Oct 27, 2009 steve

As taxpayers, we all lose. This increasingly popular process is a playground to support corporate lawyers.

Award protests should not be allowed, unfounded protests delay the start of much needed contract work and waste tremendous resources in litigation. Do the corporate budgets for protests plus the government litigation expense exceed the contract value of many contracts?

Award protests are not necessary, the government does not award to the best design, the best value, or the lowest cost. Award decisions are based on many variables that are even subjective and perceived, but not auditable. A contract award can be given to non-preferred contractors just to stimulate competition and prevent sole-sourcing.

With this amount of non-auditable subjectivity, why do we allow protests?!

Tue, Oct 27, 2009 Fred Tucson AZ

I agree with "JustMe" about providing the losing bidders a well developed and through debrief! Most bidders are very grateful of getting some feedback on their bid in order in improve their bid process. A big part of the problem is very few contracting officers simply do NOT want to be clear nor explain how they picked one particular bidder over another! In most cases the bid review process is so flawed that most contracting officers simply do not want to nor able explain how they picked particular proposal.

Tue, Oct 27, 2009

Washington Technology ought to pay attention to the commenter below that was critical of its representation of protests. To rely and report on rumor and innuendo is irresponsible; in fact, seeing as protests are largely misunderstood by industry and government, it is no wonder that everyone is scratching their heads right now. There is an assumption that everyone understands the protest process and regulations surrounding it; they don't. There is no easy answer. That said, it would be helpful if there was a concerted effort for meaningful, educated, and full-spectrum industry discussion of the topic. Allowing it to remain shrouded in mystery and legalese is feeding the problem.

Tue, Oct 27, 2009

There isn't one single reason, but what I see at the State and Local level is multi-million dollar deals being awarded based on nothing more than a vendor proposal and a 1 hour demonstration. How about if competitors can view and comment on each others proposals? And how about a field test with actual users before the purchase is made? Instead, it is generally the company with the stronger political position that wins the bid and not the best system. As taxpayers, we all lose.

Tue, Oct 27, 2009

What is most surprising to me in the responses is how little protest experience is reflected and how much rumor is is being stated. After being both a govt attorney and an inhouse attorney for contractors, I have seen the protest process from both sides. The desired scenario is one where there is trust in the effective implementation of the procurement process, with complete and informative debriefings, which more than anything will help eliminate the perceived need to file a protest in order to learn what actually happened, and a strong belief that the protest system is a last but effective remedy to ensure integrity.

There have been a number of articles on protests that talk about the “protest glut” and ask whether “contractors protest too much?” An article on the tanker award before it was announced quoted a senior military officer who said that the loser probably has a protest drafted, and that statement was a springboard to discuss frivolous protests. A protest was filed, as we all know, and it was sustained. Perhaps this shows that “frivolous,” like “beauty,” often is in the eyes of the beholder. It would be inaccurate to deem all protests frivolous, just as it would be inaccurate to assume that all loses must be protested.

The publicity appears to have created a public perception that protests are on the rise. Is this the case? The GAO released a Report on Bid Protests Involving Defense Procurements on April 9, 2009. This document responds to direction from the House Armed Services Committee. This direction was part of the reaction last year to the number of visible protests as well as many articles that talked about the “protest glut” and asked whether “contractors protest too much?” The much publicized Air Force tanker protest was not the only such visible protest. It came on the heels of other protests including (1) the search and rescue helicopter, where the GAO upheld two protests; (2) the Joint Cargo Aircraft; (3) the Broad Area Maritime Surveillance plane; and (4) a tanker maintenance contract. The following conclusions of the GAO are worth noting:
• The number of protests challenging DOD contract awards in the last five years is relatively low when viewed historically.
• The increase in bid protest filings in FY 2008 was driven in part by statutory expansions of the GAO’s bid protest jurisdiction.
In its report, the GAO noted that the tanker protest generated “unprecedented interest in and questions about” the protest process. More importantly, the GAO noted that “many of the questions we received, as well as the media accounts of the dispute, reflected a limited understanding of the protest process.” In fact, the report noted that the number of protests filed, relative to procurement spending, “actually suggests a downward trend in the rate of DOD protest filings.”
It would be beneficial to consider some of these facts when engaging in the debate and offering rumors about protests as fact.

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