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Thursday, May 16, 2013

Kick me

A frivolous protest is one, in my opinion, with no legal basis.  Why then, I ask government procurement staff, make it so easy?  Take off those "kick me" signs worn around your necks and you'll reduce the amount of protests you get, frivolous or not.

The following excellent Bloomberg report covers more ground that just this topic, so you should read the whole thing at the link, but it also does a great job of highlighting and elaborating my point.

Shrinking Budgets, Acquisition Workforce Mistakes Drive Bid Protests, Experts Say

Total federal spending on contracts fell to $516.8 billion in FY 2012 from $538.6 billion in FY 2011, according to Spending rose only 19.6 percent from $432.1 billion in FY 2006. At the same time, contractors filed 2,475 protests, cost claims, and requests for reconsideration with GAO in fiscal year 2012, a five percent increase from FY 2011 and a 94 percent increase from the 1,274 protests filed in FY 2006.

Protests started rising quickly in FY 2008--up 17 percent from FY 2007--with the downturn in the economy, according to GAO. As the commercial market contracted, companies focused on their government customers. “It became more important to win each opportunity that came out,” McKenna Long & Aldridge Partner Jay Carey said.

“If you talk to just industry people, they will tell you all this stuff about how the government is wrong on this, wrong on that,” Guerra said. “To be fair to the government, you are throwing these people to the wolves without proper training. That encourages industry to file protests. They are making mistakes, and GAO is overturning them, so what do I have to lose?”

One factor contributing to the rise in protests is the acquisition workforce, which is becoming smaller and losing talent due to budget pressures. A shrinking acquisition workforce dealing with more complicated contracts commits more errors, several analysts said.

Among other things, staffers writing requests for proposals need more training, ImpaQ Solutions President Mark Boster said. “The vast majority of RFP's I've seen have fatal flaws, and the process itself is fatally flawed, making protests easy,” he said. “Why not go after it?”

In addition, policy makers completely fail to appreciate the complexity of federal procurements and the time and talent required from contracting officers, Boster said. As a result, COs do not get the support and training they need.

A protest is especially tempting if the agency is reluctant to say why a particular bidder lost.

Contracting officers are afraid that disclosing such information might be viewed as illegal or used against them in a bid protest, Seville Government Consulting President and CEO Jaime Gracia said. However, that reasoning can backfire. “If you're not telling me what I need to know, I will probably protest to get the information,” he said.

The situation was different 20 years ago. “There were probably fewer procurements and more experienced and better trained people,” Boster said.

Gracia agreed that many of the common problems with contract awards stem from the weak skills of the acquisition workforce.

“The requirements are bad, people don't understand what they are doing, you get a bad award and then you get protests,” he said. “It is more than numbers themselves. You must give them the skill set so that contractors have confidence that awards are done correctly.”

Skills that are lacking include “basic knowledge of how industry functions,” Gracia said. “They misunderstand what a company is looking for or what its goals are. There needs to be a lot more focus on collaboration and communication with industry and in the debriefing process.”

Increased numbers of service contracts, especially commoditized services such as software as a service and cloud computing, particularly tax the acquisition workforce, Mascoloceo said. “It's not where a lot of contracting officers and staffers have a lot of training, so the requirements are less defined,” she said.

Although it is hard to validate statistically that a poorly trained acquisition workforce has contributed to the rise in protests, Mark Colley, Arnold & Porter partner and chair of the firm's government contracts practice, said there is little doubt the workforce has been financially neglected and undertrained.

“It gets beat up,” Colley said. “It's hard to recruit and retain people when they are underpaid, abused, not given raises and promotions, and not given respect. It is becoming a thankless job.”

Protorae Law Member Devon Hewitt said the lack of workforce skills has increased the need for corrective actions in the last 18 months, especially for procurements of less than $30 million.

Agencies assign smaller procurements to less-experienced staff who make more errors such as math mistakes, undocumented discussions, or incomplete source selection documents, she said.

Numerous reports by both public and private entities point to deficiencies in the acquisition workforce.

For example, government procurement executives and practitioners cited inadequate training as a top concern in the Professional Services Council's biannual 2012 survey (98 FCR 651, 12/18/12). The root cause of problems in the acquisition community was the workforce downsizing conducted in the mid-1990s, they said.

Respondents classified negotiating skills as a major weakness of the workforce by a 7-1 margin over those calling it a strength. Front-end acquisition planning--e.g. defining requirements and choosing the correct contract type--also was cited as a significant area of weakness by a large margin.

Intense competition between agencies for personnel added to workforce woes, respondents to the PSC survey said. To entice offers, agencies hired GS-12 staff--viewed as working-level contracting professionals--as GS-13, 14, or 15 employees.

As a result, agencies lost institutional skills while unprepared workers filled higher-level positions.

GAO noted that the Defense Department's acquisition workforce got a boost in 2008 when Congress created the Defense Acquisition Workforce Development Fund (DAWDF).

DOD used the money to hire thousands of new staff but failed to spend 61 percent of the funds available in FY 2011, GAO noted in a June 2012 report (97 FCR 635, 6/26/12). So much was left over that Congress actually reduced funding in FY 2012 by $200 million.

Unfortunately, GAO has found that simply hiring more people will not automatically create a more capable workforce. GAO made the same point in a 2010 report, recommending that DOD develop additional measures to determine the capability of its workforce. DOD disagreed, stating current metrics such as numbers worked.

DOD is not an isolated case. Many federal agencies lack the resources to train staff, or even data regarding which skills are needed or the number of acquisition staff on their payrolls, GAO said in a March 28 report (99 FCR 492, 4/23/13)

The report found that 20 of 23 agencies surveyed identified obtaining adequate funding as challenging. Obtaining sufficient staff to manage training was deemed challenging by 19 of 23.

Almost half the agencies said even identifying the acquisition workforce was difficult, especially because some workers are involved in procurement as a secondary rather than primary duty. Almost one-third of the agencies said they do not track the benefits of training--not even basic end-of-course evaluations.

“The shortage of trained acquisition personnel hinders agencies from managing and overseeing acquisition programs and contracts that have become more expensive and increasingly complex,” GAO said. “As a result, the federal government is at risk for significant overcharges and wasteful spending of the billions of dollars it spends for goods and services each year.”

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