Agencies are in the hot seat when it comes to protests. First, it’s the Contracting Officer’s (CO’s) job to prevent a protest from being filed and, second, if a protest is filed, it’s the CO’s job, working with agency procurement counsel, to make sure the protest is not successful. But is the fear of protests driving agencies to make bad decisions? We think so.
The most common reason cited by the General Accountability Office (GAO) for sustaining protests is the government’s failure to follow its Section M evaluation criteria. The second most common ground is inadequate documentation regarding the evaluation and award process. Two other prevalent grounds for successful protests are the unequal treatment of offerors and unreasonable cost/price evaluations.
In response to these protests, it seems that agencies are increasingly structuring Section M criteria to evaluate and award on the basis of low-priced technically acceptable (LPTA). The thinking appears to be that LPTA is more protest-proof. But often LPTA does not make sense. LPTA is not suitable for any procurement where examining and weighing the tradeoffs between a more expensive item or service and a less expensive but inferior quality good or service would be in the government’s best interest. Examining and weighing the tradeoffs between price and non-price elements of proposals is an important part of our federal procurement structure and one that should not be sacrificed in order to stave off possible protests. The trick is for agencies to clearly identify, in Section M, the specific evaluation criteria to be used in a procurement and then to carefully follow this criteria and document how it was followed. Potential offerors can help in this process by posing pre-proposal clarification questions that indicate when Section M is inappropriate for the particular procurement.
Another pitfall is for agencies to make awards based upon initial proposals rather than conducting clarifications or discussions and requesting revised proposals. In this regard, COs often believe that discussions trigger protests. But while poorly conducted/defective discussions could lead to a protest, the better course is for COs, working with their counsel, to identify when discussions will be beneficial and to conduct them carefully, again documenting the discussions.
In keeping with agency fears regarding communications with offerors, agencies also share too little information with disappointed offerors during the debriefing phase believing, again incorrectly, that additional information will provide additional grounds for protest. But in our experience just the opposite is true. Many protests are what we call “look and see” protests – filed because a disappointed offerors cannot determine whether or not there was an agency misstep. A large percentage of these protests could be avoided by fulsome debriefings – debriefings that provide more than the bare minimum required under a narrow reading of the Federal Acquisition Regulation.
While recent data indicates that GAO protests continue to increase each year, it is still a fact that 99% of all procurements are never protested. It is regretful that the 1% triggers bad agency decision-making.
Lindsay Simmons is responsible for the contents of this article.
© Jackson Kelly PLLC, 2014