The Lectern: Bid protest anxiety

I'm hearing that contracting folks in government are anxious about the beginning of the new congressionally mandated authorization of bid protests against source-selection decisions for task orders under multiple-award task order contracts. As I wrote when Congress was considering this legislation, it is hard to imagine a lower priority use for scarce and overtaxed government contracting staff members than to prepare to defend more bid protest lawsuits. One maybe can hope that a new administration in January will seek to eliminate this provision.

There is also concern inside the government, in the wake of the Air Force's tanker decision, about the Government Accountability Office establishing standards of source-selection perfection in bid protests -- a sort of Six Sigma Source Selection -- as the old General Services Board of Contract Appeals did before it was eliminated as one of the great achievements of Clinton-era procurement reform. At a strategic level, obsessing with source selection and concentrating resources on source-selection perfection is a huge error. The other two stages of the procurement process -- market research, requirements development, and acquisition strategy at the beginning, contract management at the end -- are far higher priorities for improving procurement than wallowing in the intricacies of selecting a contractor.

The emerging bid protest climate is yet another sign of the dysfunctional environment appearing in our procurement system. This is a moment for industry statesmanship, if firms really take seriously the words about partnership that industry often pronounces. There was a period when respectable companies did not do bid protests, certainly at least not regularly or routinely, and, indeed, either never or only under the most extreme provocation. To use a great German phrase, bid protests were not "salonfaehig" -- literally not "fit for a salon," i.e. not something decent people did.

We need some industry statesmanship to bring that period back, not as a matter of law but as a matter of a decent respect for one's customer.

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