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Monday, November 24, 2014

Corrective actions continue to diffuse contested bid protests - GAO

The Federal Government Accountability Office has submitted its Bid Protest Annual Report to Congress for Fiscal Year 2014. It indicates corrective actions taken by government agencies is diminishing contested protest outcomes.

The report states, "It is important to note that a significant number of protests filed with our Office do not reach a decision on the merits because agencies voluntarily take corrective action in response to the protest rather than defend the protest on the merits."

The annual statistics show the "Effectiveness rate" of protests has held steady for 5 years at an impressive 43% rate. The Effectiveness rate, expressed as a percentage of all protests closed this fiscal year, is based on a protester's obtaining some form of relief from the agency, either as a result of voluntary agency corrective action or GAO's sustaining the protest.

The ADR Success Rate was similarly productive, at 83%, again line ball with the 5 year record. The ADR Success Rate is the percentage of cases resolved without a formal GAO decision after alternative dispute resolution procedures conducted at the agency level.

As a result of new Congressional requirements, the report included a summary of the most prevalent grounds for "sustaining protests” during the preceding year:
(1) failure to follow the evaluation criteria;
(2) flawed selection decision;
(3) unreasonable technical evaluation; and
(4) unequal treatment.
Jason Miller, posting on Federal News Radio, reported various reactions and comments from experts in and out of government.
"The decrease in sustainment rate is an interesting thing when you look at it with the fact that the effectiveness rate stayed the same. The effectiveness rate is the number of cases sustained and the number of cases where agencies took action and provided relief," said Ralph White, GAO's managing associate general counsel for procurement law, in an interview with Federal News Radio. "The sustainment rate going down means agencies are taking corrective action at a higher rate than last year."

White said GAO gives agencies a preliminary opinion on cases and, many times, acquisition officials decide to act before lawyers potentially rule against them.

Rob Burton, a partner with the Washington law firm, Venable, and a former deputy administrator in the Office of Federal Procurement Policy, said the drop in the sustainment rate also can be attributed to so many incumbents protesting lost contracts as a strategic business decision so they can keep the work for at least another 100 days.

Burton said one thing the numbers don't show is that the increase in protests may be because of the poor job agencies are doing debriefing unsuccessful bidders.

"One thing I've noticed is the poor quality of debriefings where the agency doesn't give the contractor much or any information," Burton said. "If agencies have more dialogue with industry during the post-award debriefing, I think you would see a significant decrease in the number of protest cases. We've had cases where we have recommended a bid protest because the agency showed nothing wrong and was very complementary in the debriefing. We only found out during the protest that there was a fundamental flaw that if the contractor knew about, they wouldn't have filed a protest."

Burton said too often agencies think it's in their best interest to give as little information during a debriefing as possible, when, in fact, the opposite is true.

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