With Protests on the Rise, What Can Agencies Do?

The Government Accountability Office’s (GAO) Bid Protest Annual Report, published at the end of 2016, revealed that the number of protests increased for the third consecutive year. Furthermore, GAO’s statistics show that bid protests have been climbing for the last several years:

Bid protests by year, per GAO reporting

The fact that there is an increase probably isn’t a surprise to anyone involved in the world of Federal government contracting. Taken in the context of the budget battles of 2017 (those looming and those in progress), last year’s increase may be a sign of more to come.

There has always been a strong relationship between budgets, agency spending, and protests.

When departments and agencies have fewer dollars to spend, there are fewer contracts awarded. So, each award becomes more important to the offeror.

More importantly to those on the Federal government side of the business is that the “sustained rate” is also increasing. The rate jumped from 12% in 2015 to 22.56% in 2016, an increase of over 10%.

GAO noted that the top four reasons for a protest to be sustained were:

  • Unreasonable technical evaluation
  • Unreasonable past-performance evaluation
  • Unreasonable cost or price evaluation
  • Flawed selection decision

Given the protest statistics, what can agencies learn from GAO decisions and how can they protest-proof their awards?

We suggest three tips.

First, understand GAO’s position and recognize there are universal themes found in the words GAO includes in many if not all of its decisions, specifically “sustained” and “denied.” These words provide insight on GAO’s focus and intent when reviewing a protest. Here’s a description from the GAO:

“In reviewing protests of an agency’s evaluation of an offeror’s … proposal, our Office does not reevaluate proposals; rather, we review the evaluation to determine if it was reasonable, consistent with the solicitation’s evaluation scheme [emphasis added], as well as procurement statues and regulations, and adequately documented [emphasis added]. The protestor’s disagreement with the agency’s evaluation without more, is not sufficient to render the evaluation unreasonable.”

Secondly, properly document contract actions during the source selection process. This includes documenting technical and cost proposal evaluations as well as the source selection decision itself!

Many of the cases where GAO sustained the protest include the following statement: “the agency failed to … document [their decision and/ or evaluation] therefore we cannot consider their evaluation.”

Testimony without well documented reports and evaluations does not necessarily persuade the court.

Technical evaluation reports, past performance reports, cost or pricing evaluations all need to have documentation that explains how and why each proposal was, or wasn’t, evaluated. Even the source section authority’s decision needs to be documented and signed. Just “initialing off” based on the source selection team’s recommendation does not convince the court the source selection was property done. The court is looking for good, documented reasons that support the award.

Lastly, follow the source selection plan. It’s important to remember that GAO does not reevaluate proposals. What they do is review the source selection plan to determine if it complies with statutes and regulations. They are not going to evaluate the specific source selection factors to determine whether they’re good or bad. But they will compare how the agency evaluated the proposals to the agency’s source selection plan. Was the evaluation consistent with the plan? In other words, did the agency do what they said they were going to do? If the answer is yes, the agency may have a better chance of prevailing in a protest situation

Many awards are protested each year. The above suggestions are best practices and will improve your source selection (or help take your source selection skills to the next level) and your chances of a protest-free procurement.

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Acquisition & Contracting
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