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A couple of days ago, the COFC issued a protest opinion in Pinnacle Solutions, Inc..  In this procurement, there were 2 protests at the GAO--one sustained with a corrective action and one dismissed.  The COFC opinion in Pinnacle was the third protest and was dismissed.  I did not post the Pinnacle opinion because the 3 protests stretched only about 18 months.. 

Someone mentioned in another forum that the issue of successive protests and corrective actions was a problem.  Earlier, in another procurement, there was a series of GAO protests, corrective actions, and a COFC protest that streched for a period of 4 years.  If I remember correctly, the protester was able to improve its techicnal evaluation score significantly.  However, before these 2 protests, I never noticed successive protests as a possible problem.  My questions to the community are:

  1. Will you benefit if I make a separate section in the bid protest area dealing with successive bid protests and their effect. 
  2. What are the possible effects of successive protests and what should I address?

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Tonight, I am looking at the COFC's opinion in American Correctional Healthcare, Inc.  Prior to the COFC's opinion, GAO issued 2 bid protest decisions-1 sustaining a protest with a corrective action and another dismissing a second protest.  The Court in its opinion sided with the protester in one part of it's claim and granted a permanent injunction.

These 3 procurement that made it to the COFC--this one, the one above, and the first I posted in another discussion--may be more than a coincidence.  I don't know who brought this issue up but he/she taught this old dog a new trick.

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Guest Vern Edwards
21 hours ago, bob7947 said:

Someone mentioned in another forum that the issue of successive protests and corrective actions was a problem.  Earlier, in another procurement, there was a series of GAO protests, corrective actions, and a COFC protest that streched for a period of 4 years.  If I remember correctly, the protester was able to improve its techicnal evaluation score significantly.  However, before these 2 protests, I never noticed successive protests as a possible problem.  My questions to the community are:

  1. Will you benefit if I make a separate section in the bid protest area dealing with successive bid protests and their effect. 
  2. What are the possible effects of successive protests and what should I address?

I have been working on an article for The Nash & Cibinic Report about successive protests, or what I call serial protests---which I define as those in which an acquisition protested to the Court of Federal Claims (COFC) had been protested to the GAO at least three times before going to the court. I searched the COFC decisions for such cases and found 16 since 2004. The most recent such decision (as of the time of my research about two weeks ago) was DZSP 21, LLC v. U.S., No. 18-86C, March 22, 2018, 2018 WL 1530654. In some cases at least four years had lapsed since the initial release of the RFP, but most of that time had been taken by the agency prior to the first protest. There would be more than 16 such cases if we added those cases in which there had been only two GAO protests before the case went to the court.

Q1: I would not benefit from a separate section in the bid protest area devoted to successive protests, but others might, or might be interested in the topic.

Q2: As for the effects: If you're the agency conducting the acquisition the answer would be yes. All of the cases involved long-term services, and so agency operations would be affected in some way, although probably sustained through the use of "bridge" contracts.

Some offerors would be affected in various ways, beneficially or detrimentally. But in the larger scheme of things, I don't think that there have been enough such cases to date as to represent systemic problems. They are outliers. I doubt that Congress, which is comprised mostly of lawyers, would do anything to put a stop to it in response to so few incidents. Industry organizations and the law firms that represent protesters would likely object to any attempt to stop it.

The obvious preventative solution would be to require a protester to choose a forum and live with that choice one they had filed a protest. I'm not sure whether that would throw more protests to the COFC. But it would prevent a protester from starting at the GAO and then going to the court if they are not happy with the outcome. Another solution would be to impose a statutory filing deadline at the COFC. However, that might result in more litigation if protesters were to challenge timeliness decisions, which they almost certainly would during the first few years after a deadline was imposed.

My tentative conclusion after reading the decisions is that serial protests are a product of (a) agency incompetence and (b) market conditions. Agencies tend to make their evaluation schemes too complex and thus their evaluation procedures and decisions vulnerable to error and challenge. The solution is to simplify. I suspect that in some markets, like information technology, there are a lot of small(er), marginal firms that see government work as a life buoy. They are aggressive, have little to lose by protesting, and have much to gain. Support service contract incumbents that lose competitions also tend to be aggressive about fighting to hang on to work. Agencies must do a better job of planning and managing their source selections in order to protect themselves from serial protesters.

 

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Vern:

Thank you.

Quote

The most recent such decision (as of the time of my research about two weeks ago) was DZSP 21, LLC v. U.S., No. 18-86C, March 22, 2018, 2018 WL 1530654.

That is the one that I posted on another discussion.  I remember (or think I remember) the time-span of 2014 to 2018.  In that case, I believe the protester was able to raise its technical score, or reduce its price, so that it was very competitive.  There were two more since then with 2 GAO protests.

However, even if we doubled the 16 cases over a 13 or 14-year period, we are still dealing with a relatively small number.  Perhaps the 3 cases I noticed with 2 GAO protests leading to a COFC protest were just an anomaly.

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I forgot to post another successive protest case this weekend.  It is a little different that earlier ones, in that, the original GAO protest was from 2 unnamed protesters whie the 2nd GAO protest and the COFC protest was from Technik.  Details are below and the COFC case is Technik Inc. v. U. S. and VSolvit LLC.

  • January 12, 2017 - RFQ issued,
  • Summer 2017 - first GAO protest from 2 unsuccessful offerors, GSA took voluntary corrective action and canceled award to Technik, GAO dismissed protest
  • August 30, 2017 - GSA issued second RFQ,
  • December 7, 2017 - GSA awarded second RFQ to VSolvit
  • December 15, 2017 - Technik protested to GAO,
  • March 22, 2018 - GAO denied Technik protest,
  • April 6, 2018 - Technik protest to COFC
  • April 20, 2018 - COFC denied Technik protest

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We discussed this a bit in the other thread, but I think it comes back to the Corrective Actions. GAO needs to evaluate the merit of a potential CA, and GAO and the government need to stop looking at a CA as a "win". A corrective action is not a positive thing for Industry or Government. 2600 cases filed at GAO in 2017, 581 had decisions. Does that mean 80% of protests go to Corrective Action?  

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11 minutes ago, sdvr said:

Does that mean 80% of protests go to Corrective Action?  

No, just as agencies can take corrective action, protesters may withdraw their protest(s).

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Guest Vern Edwards

The focus on protest statistics is misplaced. The real impact of protests is their effect on the conduct of future acquisitions.

See FAR 15.209(a)(1). Now ask yourself: Why is the government's default position that competitively "negotiated" contracts will be awarded without discussions? Isn't that odd in light of FAR 6.401(b)(2)? What do you think is the reason?

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Yesterday, I noticed another two-timing protest at GAO--Pinnacle Solutions, Inc.--so we may have another three-timer soon if they protest to COFC.  The top note here is about Pinnacle Solutions, Inc..  I didn't look to see if the protests were related.

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35 minutes ago, Matthew Fleharty said:

No, just as agencies can take corrective action, protesters may withdraw their protest(s).

Thanks - I didn't think that was correct, but couldn't find better data

14 minutes ago, Vern Edwards said:

The focus on protest statistics is misplaced. The real impact of protests is their effect on the conduct of future acquisitions.

See FAR 15.209(a)(1). Now ask yourself: Why is the government's default position that competitively "negotiated" contracts will be awarded without discussions? Isn't that odd in light of FAR 6.401(b)(2)? What do you think is the reason?

I am a data guy not a FAR guy, so my mind looks for #s. But I have to respectfully disagree with your first statement. From a legal standpoint, sure, the impact is down the road. But from the operational side, it costs everyone resources. Corrective Actions should identify the problem, correct it, and include measures that help prevent it from happening again. 

On the FAR question, my thought is that some think discussions lead to protests. But I don't have data to back that assumption. I think the intent of the clauses is to allow for the less complex purchases to be done quickly and efficiently ( Insert joke here), while give flexibility to allow for more complex purchases. Pretty sure this forum has gone down this road before as well, but outside of Federal Contracting buying a house is different than buying a computer. You can "negotiate" both purchases, but one is most likely done with discussions, one without. You can buy a house with out discussions, but I don't think most would. You can call Apple and attempt to negotiate terms and pricing, but you wont get far.  That is what I think the intent is, but impact vs intent is always different. 

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Guest Vern Edwards
18 hours ago, sdvr said:

But from the operational side, it costs everyone resources.

No it doesn't.

As you said, data guys think everything is about #s. In this case, it's not. Two thousand protests year are less than a drop in the bucket of all new acquisitions. Moreover, 80 percent of those protests that go to decision are denied in short order. Only about 20 percent of the ones that go to decision are sustained, and most of them are sustained quickly and resolved first time around. (According to GAO, it sustained 99 protests our of 581 in FY2017.) Corrective action is usually simple and effective the first time around. The operational effect is greatest on those agencies that cannot or will not put competent people in charge of their source selections. You're right that competency matters.

However, the psychological effect of protests on acquisition operations is far greater than the direct operational effect. Many think discussions lead to protests, and they do. They have been a leading source of protests.  But that's not the problem. The problem is that the GAO has used its protest decision-making power to make rules about discussions. Those rules confuse and scare people, and so they'd rather award without discussions than with. It's true that you can award a contract without discussions more quickly than you can with discussions, but at what cost to arriving at a meeting of the minds and satisfactory performance? To award a multi-million dollar contract without first talking to the firm that submitted the winning offer is insanity.

Your example of buying a computer from Apple is adsurd. That's a simplified acquisition. Talk instead about buying an entire IT system for carrying out a critical government function.

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49 minutes ago, Vern Edwards said:

In this case, it's not. Two thousand protests year are less than a drop in the bucket of all new acquisitions.

Yes a drop in the bucket for the Government, but I was referring to the costs for both sides.  It is an expensive process. 

 

1 hour ago, Vern Edwards said:

To award a multi-million dollar contract without first talking to the firm that submitted the winning offer is insanity.

Your example of buying a computer from Apple is adsurd. That's a simplified acquisition. Talk instead about buying an entire IT system for carrying out a critical government function.

It was an attempt at a simple analogy for a complex problem, of course its absurd. :) But not every multi-million dollar contract needs discussions, it depends on the variables and associated risks to those variables. The more COTS the product, the less discussions should be needed. 

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Guest Vern Edwards

Individual protests can be expensive, although they don't have to be. Protests have been won at the cost of a first class stamp, an envelope, and three or four pieces of paper. But even if expensive, those costs are a very small price to pay to maintain some discipline in an enterprise as gigantic as U.S. federal government contracting. Again, you're complaining about peanuts.

Don't say "of course its absurd" and add a smiley, as if the absurdity were unobjectionable. As for "not every multi-million dollar contract needs discussions," that's obviously a flash in the pan of a non-professional. It might not require discussions under the rules of FAR Part 15, but a multi-million dollar contract deserves discussions if for no other reason than to ensure that both parties share a common understanding of the statement or work, the specification, and contract clauses.  A bureaucrat, a statistician, or an efficiency wonk might think it makes sense to award an important contract without talking, but not a contracting professional.

As for "the more COTS the product, the less discussions should be needed," that is not sound thinking if you're talking about multi-millions worth of COTS. There are many things to discuss, even in a COTS buy, especially in light of the fact that government contracting is not governed by the Uniform Commercial Code. Read the ASBCA decision in the matter of F&F Laboratories, Inc., ASBCA 33007, 89-1 BCA 20207 (1988), about a roughly $200,000 sole source purchase of candy bars that went very wrong. Candy bars. The parties held "discussions," but not with professional skill. See what happened. A lot can go wrong In a multi-million dollar buy between two parties that didn't talk to each other in order to make sure that they understood each other properly.

You think bid protests cost money? Try contract litigation.

Look, if your point is that the acquisition workforce should be competent, then I'm with you. You don't need to argue that on grounds that the bid protest process is expensive, because in the larger scheme of things, it's not. What's expensive in the larger scheme of things is poor contracting practice, bid protests or no bid protests. The problem with bid protests is not the expense, it's that in the pursuit of bureaucratic procedural perfection the bid protest system has given rise to poor contracting practice.

 

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My original point was (and still is) that the CA process needs to be fixed. We agree 100% on the competency, ideally the workforce should know how do their job correctly, and some do. I think the process needs to be fixed, as it easier and more likely to have an impact. The costs are one factor, not the only. We agree on the long term effects, just disagree on how to solve it. 

The rest was me answering your question. You asked me what I thought, and I gave it to you.  As for the "non-professional" , I have nowhere near the experience you have, but its unwise to assume that someone who knows less has less value or something to add to the discussion. I live solely in the COTS world of federal contracting, and can assure you that multi-million COTS contracts are awarded with no issues and no discussions all the time.  If your position is the government should not be afraid of discussions, I agree 100%. But if you are saying it should happen on every large purchase, I am an honestly surprised by that position. 

   

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Guest Vern Edwards

Well, we mainly disagree on the discussions question. I think that two parties going into a multi-million dollar COTS contract and that have no prior experience with one another should engage in professional talk before signing, if for no other purpose than to go over terms and conditions in order to try to confirm a meeting of the minds. A U.S. government COTS contract of a million or more is one of the most complicated business documents in the world. Many thousands of words are incorporated into it by reference, and terms may be included by operation of law that were excluded without authorization.

Disputes in commercial contracting have arisen over the purchase of chickens (a COTS items if ever there was one) due to different interpretations of a single word in the contract. See Frigaliment Importing Co. v. BNS International Sales Corp., 190 F. Supp. 116 (S.D.N.Y. 1960), a widely studied case in law schools. Watch the video below.

You will not change my professional opinion about this, notwithstanding your personal experience and your honest surprise. We'll just have to agree to disagree. Talk is essential to effective contracting. The systemic problem with the bid protest system is not the expense to the parties, but that it has discouraged talk or limited it to revelation of "significant weaknesses" and "deficiencies," which is much more expensive in the long run. Only fools sign for millions without talking first. Sorry to be so rigid.

As for nonprofessional opinions, well, they are nonprofessional opinions. I don't mean it as an insult, just a fact.

.

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Vern,

Would you please clarify your position? Are you saying that a contracting officer should talk with a prospective contractor (to ensure common understanding, etc.) before awarding a multi-million dollar contract? Or are you saying a contracting officer should conduct discussions with offerors before awarding a multi-million dollar contract?

I think a contracting officer could have a professional talk with a prospective contractor to go over terms and conditions in order to try to confirm a meeting of the minds, determine that discussions are unnecessary, and award without discussions. I don't think that would be insane. 

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Guest Vern Edwards
1 hour ago, Don Mansfield said:

I think a contracting officer could have a professional talk with a prospective contractor to go over terms and conditions in order to try to confirm a meeting of the minds, determine that discussions are unnecessary, and award without discussions. I don't think that would be insane. 

I think you are contemplating a type of "exchange" with an offeror after receipt of proposals that would not be clarification, communication, or discussion as described in FAR 15.306. Is that correct?

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Here's a defense related example from today's news (emphasis added below):

Quote

Because Boeing is locked into a fixed-price contract that makes it responsible for paying any costs above the $4.9 billion award value, it has had to use its own funding to pay for improvements to the RVS. Gibbons declined to comment on how much the company is investing on the system.

However, Gibbons and Martin stressed that the Air Force’s original requirement for the system, written almost a decade ago, left much up to interpretation. For instance, the RVS requirement calls for a system with “sufficient visual acuity to be able to perform aerial refueling in all conditions,” a qualitative description that doesn’t lay out exact parameters.

The requirements also included no information on the acceptable number of undetected contacts, Gibbons said.

That may be why Leanne Caret, the head of Boeing’s defense business, said the company’s most significant lesson learned during the course of the program is that all parties need to make sure they’re on the same page in regard to requirements.

“How do you define the spec appropriately? How do you make certain from a verification and a validation perspective that the intent as well as the exactness of it is there?” she told reporters May 3.

 

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On 5/9/2018 at 1:26 PM, Vern Edwards said:

I think you are contemplating a type of "exchange" with an offeror after receipt of proposals that would not be clarification, communication, or discussion as described in FAR 15.306. Is that correct?

If the exchange must be classified as one of the three, then I think it would be clarification. The purpose would be to enhance the parties' understanding of the prospective contract, allow reasonable interpretation of the proposed contract, but not permit revision of the proposal.

However, I don't think that such an exchange needs to be classified as one of the three. You've identified a risk that the contracting officer takes when awarding without discussions. This exchange mitigates that risk. I don't see anything in the FAR that would prohibit such an exchange. 

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Guest Vern Edwards
34 minutes ago, Don Mansfield said:

I don't see anything in the FAR that would prohibit such an exchange. 

Neither do I. But I wouldn't do it that way. I'd just conduct discussions. I think it would be more efficient and would prompt less opposition from legal and staff.

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Here is another successive protest.  First protest to GAO in 2015, a corrective action, agency issued a new solicitation a year later in 2016, 2nd protest to GAO in 2017, and now a protest COFC in 2018.   See Trans Digital Technologies, LLC.

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Here is another successive bid protest with GAO and 2 Courts.

First protest to GAO about 2015, corrective action, protester sent a letter to COFC about its intent to file a protest, agency revised its corrective action, protester dropped its intent, protester filed a 2nd protest to GAO, agency cancelled RFQ, 3rd protest to GAO, protest to COFC in 2016, appeal to CAFC by the government over fees in 2018.

5 trips to a protest forum or 6 trips if you count the fee opinion in COFC.  See  Starry Associates, Inc.. v. U. S., and Intellizant, LLC, No. 2017-2148, June 22, 2018.

I'm listing these successive protests here while I decide what I want to do with them and for those interested.

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I posted an issue from the current protest last night.  I think I have all the protests correctly. 

Quote

Solicitation N62742-13-R-1150 issued ------ October 2013

Fluor Federal Solutions LLC, B-410486, et al., Jan. 2, 2015   (Sustained)

Fluor B-410486.6, B-410486.7, Mar. 30, 2016  (attorney advised GAO would sustain) (unpublished)

Fluor Federal Solutions, LLC B-410486.9: Jan 18, 2017  (Sustained)

Fluor Federal Solutions, LLC, B-414223: Mar 29, 2017  (denied, dismissed)

DZSP 21, LLC, B-410486.10: Jan 10, 2018 (denied)

DZSP 21, LLC v. United States, 137 Fed. Cl. 38 (2018)  -------  March, 22, 2018  (Sustained)

DZSP 21, LLC v. United States and Fluor Federal Solutions ------- August 10, 2018  (Sustained)

I linked the decisions that mentioned a history of the pro-venture  (my new name for the adventure of successive protests)  I believe the current NDAA has a section where someone may conduct another study.

I think the work has been provided through bridge contracts while the pro-venture continues.

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Here is another 3-for.

Solicitation # W52P1J-15-R-0122, issued on May 3, 2016.

  1. In February 2017, several offerors protested to GAO.
  2. Army notified GAO that it was taking corrective action on March 21, 2017
  3. GAO Protest dismissed -- because of Army corrective action.
  4. COFC Protest:  issued a permanent restraining order, Dell Federal Systems, L.P and Plaintiff Blue Tech Inc., Iron Bow Technologies LLC et al v. U. S. and Alphasix Corp et al, Nos. 17-465C, 17-473C,  July 13, 2017.
  5. After the COFC opinion,  another group protested to GAO.  GAO found out that one of those protesters protested to the COFC and GAO bailed.  CDW Government, LLC; CounterTrade Products, Inc.; Telos Corporation; FedBiz IT Solutions, LLC; Transource Services Corporation; CredoGov; J.C. Technology, Inc. d/b/a Ace Computers; New Tech Solutions, Inc.; HPI Federal, LLC; Koi Computers, Inc.; FCN, Inc.; Integration Technologies Group, Inc. B-414389.25, B-414389.26, B-414389.27, B-414389.28 ,B-414389.29, B-414389.30, B-414389.31, B-414389.32, B-414389.33, B-414389.34, B-414389.35, B-414389.36: Sep 18, 2017
  6. CAFC Appeal:  reversed COFC opinion, Dell Federal Systems, L.P., Blue Tech Inc., Red River Computer Company, Inc., Plaintiffs-Appellees; Iron Bow Technologies, LLC, Govsmart, Inc., Ideal Systems Solution, NCS Technologies, Inc., Plaintiffs,:  U.S., HPI Federal, LLC, CDW Government LLC, et al., Nos. 2017-2516, 2017-2535, 2017-2554,  October 5, 2018.

There were many unhappy offerors.  In the second round of protests, by different protesters, about different things (9/18/17 decision), there were 12 b-numbers handed out, each representing a protest or protestor.  One of those protesters, protested to the COFC but I didn't look for an opinion on that item. 

I'm feeling there is room for an electronic protest game.

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On 5/8/2018 at 9:38 AM, Guest Vern Edwards said:

See FAR 15.209(a)(1). Now ask yourself: Why is the government's default position that competitively "negotiated" contracts will be awarded without discussions? Isn't that odd in light of FAR 6.401(b)(2)? What do you think is the reason?

Agencies are still trying cherry-pick contractors. Source Selections have been bastardized into mere writing exercises to justify the cherry-picked contractor with the hope that the award decision isn't protested. When protests are filed agencies must face their incompetence despite the often hyperbole-wrought bases for protests. Someone should tell contractor legal Counsel they don't need to try so hard in their protest write-ups. Agency incompetence almost always speaks for itself during discovery. As a contracting officer / business advisor I tell requiring activities they can listen to Contracting now or they'll have to listen to Contracting later.

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