How to nip those protests in the bud

Jaime Gracia is president and CEO of Seville Government Consulting, a federal acquisition and program management consulting firm.

For acquisition personnel who are working on a contract of any significant dollar value, the fear of a protest is almost palpable. Although protests occur on only a small number of contracts overall, when it comes to contracts worth more than $100 million, a protest is either highly likely or a foregone conclusion.

There are many reasons for this, including the weak economic condition of the federal market, which plays into business decisions by contractors. However, poor communication by federal procurement officials both before and after a contract award seems to be a common denominator, and it often leads contractors to protest as a way of fixing wrongs that in reality never existed.

I addressed this issue on LinkedIn and GovLoop, and the responses were not surprising. The federal procurement officials who responded attributed the problem to risk avoidance as a result of weak leadership support and the conviction that no good deed goes unpunished. For industry, it was a matter of transparency on the part of the government and a lack of confidence in the contract award process.

Nonetheless, the conversation elicited some common ideas for best practices that should be followed in hopes of preventing protests from the outset.

1. Federal procurement leaders should provide more support for contract specialists. Many people agree that the fear of protests leads some contracting officers to be less than forthcoming with information lest that information be used against them. In addition, their performance reviews reflect the number of protests filed. They also feel a lack of guidance from the legal department and management. Those policies need to be revised.

2. Program offices need to improve their processes and procedures, especially when it comes to requirements definitions and evaluation criteria. Too often the requirements and evaluation criteria are overly complex or are written with one company’s experience or capabilities in mind — or both. When a solicitation is wired in that way, the government misses out on possible innovation and cost reductions.

3. The source selection processes, presumably documented in the source selection plan, should be made publicly available. Many contractors see the government's intent for the solicitation only in the instructions to offerors and in the evaluation criteria. Source selection is a process-driven initiative, and transparency is vital to communication and building trust in the contract award decision. That information needs to be made public so contracting officers can walk offerors through the process and let them know why they were not selected for the contract.

4. The value, processes and procedures for debriefing sessions are ripe for review because that is where many protest decisions are made. Many protesting contractors do not see any value in those sessions and certainly do not agree with less-than-transparent decisions. A full accounting of contractor weaknesses, areas for improvement, costs and other factors will lead to confidence in the contract award decision.

Although protests can never be fully avoided, improving transparency and communication could go a long way toward ensuring that protests are not upheld or don’t get filed in the first place. Ultimately, contracting officers need to understand that they are business advisers to their internal and external customers — and that includes industry.