Protests: Say it loud and say it proud

The form and substance of procurement protests (This appeared in the Marianas Business Journal August 30, 2010, available by subscription, but is reproduced here by permission of the author -- me.)

One of the things that I found ironic in the recent JFK stand off was that the students were so effective in using their legal right to protest against the companies' legal right to protest. I rationalized away the dichotomy with the thought that the students probably were not so much against the companies’ right to protest as against the perceived bad form of the protests, given the understandable desire of the students to get their school quickly rebuilt.

Which brings me to protests and bad form. What is the proper form of a procurement protest? This is vitally important since you are required to file a “protest” if you have any hope of rectifying a perceived impropriety in a solicitation.

The law requires a protest to contain only a minimal amount of information, almost all of which you would usually by habit put into a standard business letter: your name and address, identification of the subject matter (solicitation number for instance), supporting documentation to substantiate your claim, and a statement of the reasons for your protest.

But there are many kinds of letters you might write to a government agency that contained all of that information yet not rise to the appropriate “tenor” of a protest. You might write, for instance, to request the agency to take another look at the situation. You might write to simply sound off in dissent. You might write to ask for an explanation. And quite often, you might write in a manner that is so polite, so as not to get the government off side, that you don't really get around to saying much of anything other than implying some displeasure.

The problem with letters described above is that they illustrate what the procurement regulations describe as mere “complaint” or a “request for reconsideration” or a “request for reasons”. None of those communications constitutes a protest under procurement regulations.

In one recent OPA appeal, the Hearing Officer took a very lenient view of what constitutes a protest. In that case, the letter to the agency “respectfully request[ed] for consideration for re evaluation of the bid ... due to the fact that we submitted the lowest bid....” That sounds to me like a request for reconsideration, which is not a “protest”. Fortunately for the bidder, the Hearing Officer accepted the letter as a protest.

Other cases have not been so lenient. Under the same ABA Model Code that Guam procurement law follows, the Maryland State Board of Contract Appeals has ruled:

"While no specific words of protest are required, the writing must reach a level of confrontation sufficient to put a reader on reasonable notice it is offered as a complaint.

“Procurement Officers receive many letters and other written material in regards to solicitations. The vast majority of the letters constitute 'puffing', or provide information, comments, criticisms and suggestions. The Procurement Officer must, and does, have the authority to decide how to reasonably manage this material since otherwise every letter would be potentially a protest and the procurement process would cease.

“The protestor should not be timid in his protest but rather make formal accusations or state their displeasure in a manner calculated to clearly reflect an intent that the award should be set aside or altered to correct the error, impropriety or other basis of award. ...

"At first glance the result seems draconian. However, a bid protest effectively stops the procurement process and is not an action taken lightly. ... The Procurement Officer should not have to guess or speculate if a letter is a protest or not. Requiring the protestor to express its protest in language which places a reasonable reader on notice a complaint is intended is not unduly burdensome."

Dictionaries suggest that the difference between protest and dissent is some form of strong objection, not polite disapproval. That nuanced but critical difference is reflected in the requirement of some “level of confrontation”.

The JFK students recognized that difference intuitively.