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Friday, August 23, 2013


There is an element of the press that feeds on creating, not uncovering, creating controversy. An easy and perennial target is bid protests, such as this:

Bid protests are slowing down military procurements
The appeals process for bids is slowing down military procurement and the number of bid protests is rising, according to a report by Federal Times.

Click here for full report from Federal Times.
I bothered to click the link and read the source material, which you should always do, especially with the posts on this blawg.

In fact, I read it and posted it when it first came out some time ago. See What has taken this so long to happen. How can protests slow down the process when the process is being planned to accommodate them? As the source article stated,
They have become so common that agencies expect them, build them into their contracting timelines, and regularly train their procurement staffs on how to minimize them, according to agency officials and outside experts.

“We build time in our procurement now for protests. We know we are going to get protested,” said Mary Davie, assistant commissioner of the Office of Integrated Technology Services at the General Services Administration, at a July 11 conference.

Joe Jordan, administrator for federal procurement policy at the Office of Management and Budget, said bid protests are an important part of the acquisition process, but too many of them can gum up the process. OMB encourages agencies to explain clearly to companies why they lost a competition and why an award went to a particular company. By sharing more information, agencies can reduce bid protests, Jordan said.

GSA Administrator Dan Tangherlini said the agency is working to minimize bid protests by reviewing its contracting process and identifying opportunities to train employees on comprehensive contracting requirements.

GSA also has lengthened its lead time on certain contracts to make sure the agency has done its due diligence but balances that with keeping up a timely contracting process.
In contrast to the poppycock above, consider this post: Protests: Rare and worth it
Steven Maser, Professor of Public Management and Public Policy, recently authored a study funded by the Acquisition Research Program at the Naval Postgraduate School and distributed for practitioners through the IBM Center for the Business of Government. It evaluated the way government agencies manage the bidding process when they purchase products or services.

What Maser found was eye-opening. In the past few years the number of bid protests, where a rejected bidder complains to the Government Accountability Office, has been on the rise although the total number is small. Maser found that in most cases bid protests were not sustained.

However, bid protests aren’t necessarily bad. Maser argues that they provide an important benchmark. "In general, the system serves a very good purpose of helping the government actually police itself," he said during an interview with Federal News Radio. The study notes that the more transparency and disclosure that’s built into the process, the less likely a bid protest will occur. It recommends that agencies should simplify the requirements they create for the products and services they need and adequately train staff members who will evaluate proposals.

The percentage of contracts that spark protests is also comparatively small, while the overall impact of the protest procedure is healthy, according to Dan Gordon, the former Obama administration head of the Office of Federal Procurement Policy and now associate dean for government procurement law studies at George Washington University Law School.

In an article set for publication this spring in the Public Contract Law Journal, a copy of which was provided to Government Executive, Gordon wrote that “there exist a number of misperceptions concerning bid protest statistics that deserve attention, because these misperceptions can taint judgments about the benefits and costs of protests. In particular, even people quite familiar with the federal acquisition system often believe that protests are more common than they really are, and they believe, inaccurately, that protesters use the protest process as a business tactic to obtain contracts from the government.”
And this: Doth we protest too much? Methinks not
There’s little the agencies can do to prevent the automatic, 100-day work delays triggered by protests to the U.S. Government Accountability Office, which arbitrates contract disputes. As a last-ditch effort, the government can supersede the stays with an override, which requires the officials to justify an urgent need or show that it’s in the best interest of U.S. taxpayers.

There have been no significant changes to the automatic delays in almost two decades. Congress in 2009 requested that GAO assess whether frivolous protests were rising. The office responded that attempts to discourage those challenges might backfire by adding costs and deterring “good-faith protests.”

Protests can serve as checks and balances to a sometimes opaque and flawed contracting process.

Sue Payton, who was assistant secretary for acquisition at the Air Force from 2006 to 2009, said she used to build potential delays into the timeline for planning contracts. “Getting the requirements right up front saves you from protest hell,” Payton said.

The most effective way of avoiding challenges, though, is making sure the contracting process is fair and complete from beginning to end, according to current and former military officials. The Army tries to deter protests with contract solicitations that are “thoroughly scrubbed” to make sure they are clear, concise and compliant with federal regulations, said Matthew Bourke, a spokesman for the service. It also works to keep “a very open dialog with our industry partners,” he said in an e-mail.

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