When Contract Protests Emerge, Whose Fault Are They?
After a successful protest on a $95 million multiple award contract, a contracting officer once said to me, “Thank you for filing that protest; our division learned from it.” Having worked in procurement for more than 33 years for both the government and the private sector, I know my clients also have heard the inverse of that comment: “If you file a protest, you will never see another piece of business from our office.”
Recent statistics from the Government Accountability Office (GAO) have shown that about 40 percent of the time, companies filing bid protests get some form of relief from the GAO or the agency, often in terms of the agency taking corrective action to cure an error. Is every bid protest a mark of system failure or mistake? Is a bid protest a learning tool for contracting officers, or a personal attack that invites retribution against the protester? Whose fault is a bid protest? These are complex questions, because the chances a contractor has written a perfect proposal are about as low as the likelihood the government has conducted, and documented, a perfect source selection.
Let’s focus on the government’s role in protest fault. From the government side, as procurements become more complex, it is increasingly difficult to produce a solicitation free from defects or ambiguities. The question-and-answer (Q&A) process is a particular problem, because a solicitation with scores of Q&As becomes unintelligible. A solicitation that has been amended 18 times with 250 Q&As is not a document that can form a contract.
In an ideal world, circulating draft solicitations can mitigate this problem, but often time does not permit this luxury. The result often is a bid protest arising out of a misunderstanding created by the confusing bid document. Probably the most common government error that triggers a successful bid protest is failing to evaluate a proposal in accordance with the solicitation criteria. From my experience, a common denominator of those protests often is a lack of government education on the evaluation rules. See this excerpt from a GAO bid protest decision in a case called Finlen Complex, B-288280 (2001).
“Despite the ‘simplified’ label, this procurement is very similar to any other negotiated acquisition conducted under the rules set forth in FAR part 15. Those rules require that when offerors are asked to prepare detailed proposals, those offerors must be advised of the weight of all factors and significant subfactors that will affect the contract award. FAR Sec. 15.304(d). When our Office asked the Army to address why it would want to withhold this basic information from offerors preparing proposals, the agency answered ‘that revealing the relative importance of factors may result in offerors skewing their proposals to the more important factors.’ Agency Supp. Report at 7. In addition, the Army argued that revealing the relative weight of factors in the solicitation would hinder the agency's ability to change the weight of those factors during the course of its evaluation. Id. In our view, neither of these considerations is appropriate under the circumstances of this, or any other, procurement, nor are they advisable for the integrity of the public procurement process.”
That is a very illustrative excerpt from the GAO bid protest decision. But what does this GAO finding reflect on this procurement team’s knowledge of the very basics of procurement law? While often there is no shortage of fault to go around in a protest, a lack of government education in the procurement process is one of the main culprits. We have to improve this educational process to remove this type of fault from the protest causation list.
In my blog next month, we will look at the debriefing process and contractor bid strategies as other fault contributors.
Al Krachman, Esq., is a partner with Blank Rome LLP and has been practicing procurement law for more than 33 years.
