And, since government contracting is the means by which most of our tax money is spent, the government provides an administrative process to resolve the disputes more expediently than available by courts, which is where private contract disputes usually end up, absent some form of ADR (alternative dispute resolution) process the circumvents court action. In this light, the administrative dispute process is another form of ADR.
It must also be added that the procurement dispute process is the only means of assuring our tax moneys are being spent properly (if not wisely) by policing the system in real time (as contrasted with an audit some years hence).
I feel quite certain that the boring and routine procurement protest system would receive no more attention than the run-of-the-mill ADR procedure but for two things: it provides a "train wreck" story for the media to monetarize; and, it provides a platform for politicians to politicize. The theme in both cases is by question and answer. Question: why is this procurement being held up when the need is obvious and immediate? Answer: because of the frivolous action of a disreputable vendor.
In this blawg, I have often posted about frivolous protests, because the issue is so constantly being brought up. See, here, here, here, here, here, and here, for example.
And it is only being brought up because it is "good" (money making) media and "good" (vote and/or attention-getting) politics. It is not being brought up because it is a real problem, and to the extent it may be some kind of problem it blown all out of proportion to the seriousness of the matter. It is not brought up in good faith to address a real issue. It is simply a concocted drama.
Here is another illustration of the meme from Bloomberg. As always, read the original article at the link. I can end up taking extreme liberties and artistic license to the subject for my own didactic purposes, and you cannot rely on this blawg to provide the full, accurate, true-to-form, or intended iteration. So, go on, read the original.
Pentagon Contract Protests Aren't Frivolous, Rand Study Finds, by Anthony Capaccio, January 4, 2018
The Defense Department’s process for buying weapons, goods and services isn’t being overwhelmed or delayed by frivolous contract protests filed by major defense contractors as critics have contended, according to a study mandated by Congress. Instead, “bid protests are exceedingly uncommon for DoD procurements,” the report by the Rand Corp.’s federally funded National Defense Research Institute said. The report was based on a review protests in years fiscal 2008 through 2016.
Congress directed the study to examine 14 areas, including how much the government spends on manpower to defend its actions. Rand said it was unable to quantify those costs for lack of data. This lack of data could undercut a provision in this year’s defense policy bill that requires the Pentagon set up a three-year pilot program in 2019 requiring losing protesters to pay the Defense Department’s costs for handling GAO challenges.
More than half of challenges were brought by small businesses, it said, and the protest process was more effective than generally realized at compelling a military service to change its initial contract solicitation terms or its decision after a protest was filed.
The data-driven assessment is significant because it’s likely to be the basis of future congressional and Pentagon decisions on improving the process that lets bidders that have complaints before an award or those who lose a competition file appeals to the Government Accountability Office. The report underscores that most challenges are routine, unlike the few that end up in the spotlight.
“Policymakers should avoid drawing overall conclusions or assumptions about trends from one case when it comes to the efficacy of the bid protest system,” Rand said. The percentage of contracts protested is very small -- less than 0.3 percent per billion dollars of military contract spending, Rand said.
The report also described “a lack of trust on each side” between the defense industry and the Pentagon’s acquisition bureaucracy about the protest process. For example, military personnel say the rules allow “protesters to make excessive numbers of ‘weak allegations,’” it said. The report concluded that “firms are not likely to protest without merit,” debunking the notion that losing incumbents protest a loss merely to extend their contracts for a few months while the case is open, according to Daniel Snyder, an analyst with Bloomberg Government.
While the GAO sustained 2.6 percent of defense protests filed since fiscal 2008, the study found that’s not the whole measure of effectiveness. “The majority of relief to protesters takes the form of corrective actions” by the contracting agency while a challenge is pending before the GAO or withdrawn based on the potential for solving issues short of a decision, the study said. “Roughly 40 percent of all protest actions result in some change to the initial procurement decision or terms,” Rand said.
Rand concluded the steady record of effectiveness it documented “refutes the claim that meritless protests (some use the term frivolous)” account for the increased challenges.
MORE:
Methinks we doth not protest so much after all?
Poppycock
Doth we protest too much? Methinks not
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