Eliminating Bid Protests

[Me_BOX_Me]

On 1/18/2024 at 10:56 AM, Me_BOX_Me said:

Joining this parade a bit late. Whatever happened to the NDAA proposal that would force large unsuccessful protesters to compensate agencies for time spent defending source selection decisions? That seems like a logical first step and it vanished into the ether almost as soon as it was proposed. 

When we can't even agree to hold large unsuccessful offerors financially accountable for their frivilous bid protests, how can we expect to revamp the entire system? 

I agree with other posters that COFC should remain, as well as emphasizing ADR in some cases. 

I will say that my current agency has a robust quality assurance process in place for source selections and it has dramatically improved our documentation. Despite this, the protest rate is still very high especially from unsuccessful incumbents who just want to milk a few more months' fee from their contracts. 

Also - Seems like the proposal (as constructed) would encourage much more bidding, with the hopes of recouping solicitation costs on a technicality. So it would save the government money on the protest end, but would also draw out evaluation times. 

[CuriousContractor_22]

Very late to the party, but wanted to mention from industry perspective. My two cents: I am not against protests nor the GAO in principle since they do have value, but I am against protest trolls and terribly devised procurements.

I have encountered protest trolls that love to whine to hold up the government and the awardee. I don't know how to hold these firms accountable since they often have deep pockets to litigate anyone into oblivion. Maybe DoJ handling it would help over GAO? 

The other underlying thing here is how the Government holds agencies accountable for having procurements that are a hot mess (case in point is CIO-SP4) or use terrible evaluation tools (GSA CALC). Can the Government fine itself aside from suggesting they pay for costs of an protester's protest fees?

[formerfed]

2 hours ago, CuriousContractor_22 said:

The other underlying thing here is how the Government holds agencies accountable for having procurements that are a hot mess (case in point is CIO-SP4) or use terrible evaluation tools (GSA CALC). Can the Government fine itself aside from suggesting they pay for costs of a protester's protest fees?

That is a good point.  I understand how inexperienced or contract specialist/contracting officers lacking in knowledge can get in over their heads and receive protests.  But there’s no excuse for agencies to allow those actions obviously at fault to proceed to GAO.  How about the agency SPE and head legal advisor certify they personally reviewed the contract file/protest response and support proceeding?

I don’t see the agency fining itself as beneficial but I do think some of the protests will be resolved by the agency itself if the SPE and Chief Counsel personally verify the actions as sound.  Their reputations are at stake.

[Vern Edwards]

On 2/2/2024 at 3:50 PM, Mike_wolff said:

I know I'm late to this party, but in case Vern, you are still developing arguments, at the very least I would hope to see that if we are stuck with the current GAO protest venue, that Congress could change the process to REQUIRE that contractors first have a debriefing, and if they still want to protest after that they have to start with an agency-level protest. 

I now think that part of my proposal will include the elimination of mandatory debriefings.

I think the concept of bid protests has outlived its usefulness. The government should promise to evaluate proposals fairly. After contractor selection it should be required to give every offeror an unexpurgated copy of all the government's documentation of the evaluation of its proposal and the basis for its source selection decision.

If an offeror thinks the government did not properly evaluate its proposal it should be able  to submit a claim for its bid and proposal costs based on breach of implied contract to the CO for final decision, with appeal to a board of contract appeals or the  court of federal claims, just like any other claim. If a CO wants to explain the selection in an attempt to settle out of court, so be it.

No CICA stays, no preliminary injunctions. No agency-level protests. No GAO or COFC protest. No GAO recommendations or COFC retraining orders or injunctions.The protest tribunals should be able to provide only monetary relief.

That's it.

If the government is found to have breached the implied contract and the contractor is entitled to compensation, the funds should come out of the agency's program or operating appropriation. If the agency is found to have broken the law in making its decision the SSA and/or the CO should be subject to appropriate discipline.

We can no longer afford to delay procurements for months or even years while waiting for protest to reach their ultimate resolutions.

Agencies should have to report all of their B&P claim payouts and disciplinary actions to the American public.

Enough of the madness.

[formerfed]

38 minutes ago, Vern Edwards said:

If an offeror thinks the government did not properly evaluate its proposal it should be able  to submit a claim for its bid and proposal costs based on breach of implied contract to the CO for final decision, with appeal to a board of contract appeals or the  court of federal claims, just like any other claim. If a CO wants to explain the selection in an attempt to settle out of court, so be it.

No CICA stays, no preliminary injunctions. No agency-level protests. No GAO or COFC protest. No GAO recommendations or COFC retraining orders or injunctions.The protest tribunals should be able to provide only monetary relief.

That's it.

If the government is found to have breached the implied contract and the contractor is entitled to compensation, the funds should come out of the agency's program or operating appropriation. If the agency is found to have broken the law in making its decision the SSA and/or the CO should be subject to appropriate discipline.

We can no longer afford to delay procurements for months or even years while waiting for protest to reach their ultimate resolutions.

I really like it.  But will agency reviewers and particularly legal counsel add comparable delays in scrutinizing files before awards?  

[Vern Edwards]

Deleted.

[Vern Edwards]

1 hour ago, formerfed said:

I really like it.  But will agency reviewers and particularly legal counsel add comparable delays in scrutinizing files before awards?  

Who knows?

The FAR Part 15 source selection process and the processes modeled on it are stupid beyond repair. Not because of rules, but because of the ways that agencies choose to conduct it and dumb evaluation factors like "soundness of approach."

[Don Mansfield]

15 hours ago, Vern Edwards said:

No CICA stays, no preliminary injunctions. No agency-level protests. No GAO or COFC protest. No GAO recommendations or COFC retraining orders or injunctions.The protest tribunals should be able to provide only monetary relief.

That's it.

I like it.

[Retreadfed]

16 hours ago, Vern Edwards said:

No CICA stays, no preliminary injunctions. No agency-level protests. No GAO or COFC protest. No GAO recommendations or COFC retraining orders or injunctions.The protest tribunals should be able to provide only monetary relief.

Vern, how would your system handle those rare situations where the SSA acts unethically or criminally such as in the Darlene Dryun case or the situation that occurred years ago at DLA's Personnel Support Center in Philadelphia where the CO was demanding kickbacks from the winning contractor on competitive procurements?  In the former case, as I recall there was no evidence that Boeing colluded with Darlene, while in the DPSC situation, the contractors clearly did collude with the CO.

[joel hoffman]

On 2/29/2024 at 12:03 PM, Retreadfed said:

  In the former case, as I recall there was no evidence that Boeing colluded with Darlene,

Retreadfed, there was evidence…

Michael Sears — chief financial officer at Boeing. Negotiated Druyun’s post-retirement employment with Boeing. Convicted for role in the scandal, served a four-month prison sentence.

Phil Condit — chief executive officer of Boeing. Forced to resign as a result of the deal.

See https://sites.tufts.edu/corruptarmsdeals/the-boeing-tanker-case/#:~:text=The case stemmed from a,Department of Defense (DOD).

[joel hoffman]

3 hours ago, Retreadfed said:

Vern, how would your system handle those rare situations where the SSA acts unethically or criminally such as in the Darlene Dryun case or the situation that occurred years ago at DLA's Personnel Support Center in Philadelphia where the CO was demanding kickbacks from the winning contractor on competitive procurements?  In the former case, as I recall there was no evidence that Boeing colluded with Darlene, while in the DPSC situation, the contractors clearly did collude with the CO.

@Retreadfed, you don’t have to protest in the event of such criminal activity.

[Vern Edwards]

4 hours ago, Retreadfed said:

Vern, how would your system handle those rare situations where the SSA acts unethically or criminally...

I think an injured contractor should be able to seek B&P costs and attorney's fees by submitting a claim for breach of implied contract to evaluate proposals in compliance with law and regulation and the terms of the solicitation. The SSA should be prosecuted for any criminal violation. If there is misconduct short of a criminal violation the SSA should be disciplined (demoted or fired) in accordance personnel rules.

[Retreadfed]

2 hours ago, joel hoffman said:

Not true..

Thanks for clarifying.  I was going strictly from memories of events long ago.

[Retreadfed]

1 hour ago, joel hoffman said:

@Retreadfed, you don’t have to protest in the event of such criminal activity.

A contractor never has to protest a procurement.  However, I know in the Dryun case there were several protests following her conviction by contractors who had been victimized by her corruption.  Although filed several years after the fact, the protesters only became aware of the basis for a protest after her conviction so the protests were timely.

[Retreadfed]

43 minutes ago, Vern Edwards said:

I think an injured contractor should be able to seek B&P costs and attorney's fees by submitting a claim for breach of implied contract to evaluate proposals in compliance with law and regulation and the terms of the solicitation.

Thanks.

[Fara Fasat]

Yes reform is needed, but is the answer to eliminate protests completely? What about the harm to the government? If fraud or corruption, or even just a poorly-conducted acquisition, leads to the government not getting the best product or the best services, how does "pay their costs" remedy that? Sure the harmed bidder gets compensated, but the government is stuck with a second-best, or worse, product or service. Should the government have to accept inferior products or services because we took an ax to the protest system?

This leads back to my original post about understanding why there are protests in the first place. I refreshed my vague recollection, and the principle is known as "Chesterton's Fence", named for a concept introduced by English author and philosopher G.K. Chesterton. The most condensed version of this is: 'don't remove a fence until you know why it was put up in the first place.' Failure to address the reasons for its existence can lead to unintended consequences, or a worse situation than what existed before.

Let's assume that one of the reasons for the protest system is to ensure that the government gets the best product or service for its money (excluding LPTA of course). If we simply pay off the losing bidder, we have left that harm in place. Are we better off by tearing down the protest fence and letting in the harm, or is that harm outweighed by the harm of the extra delays and costs of protests? 

It seems to me that a proposal to reform the protest system needs to take each reason for the existence of protests, and answer two things: 1 - is the reason valid, or can the acquisition system function adequately without fixing that reason via protests? If the reason is valid,  then 2 - does the proposed reform maintain a remedy for the harm that protests addressed, or does it 'throw out the baby with the bathwater'?

i don't know the answer. It may be that the harm from protests (delays, costs, etc) outweighs the occasional second-best product or service. After all, the commercial world survives without protests. But I think that the proposed reform needs to make that case. Chesterton would ask you - why was the protest system created in the first place.

[Fara Fasat]

By the way, the heavy metal band Iron Maiden used some Chesterton lines in one of their songs. Best endorsement I know of!

[formerfed]

1 hour ago, Fara Fasat said:

Yes reform is needed, but is the answer to eliminate protests completely? What about the harm to the government? If fraud or corruption, or even just a poorly-conducted acquisition, leads to the government not getting the best product or the best services, how does "pay their costs" remedy that? Sure the harmed bidder gets compensated, but the government is stuck with a second-best, or worse, product or service. Should the government have to accept inferior products or services because we took an ax to the protest system. 

I’m not following you.  Are you saying a protest helps ensure the government gets the best product or service?  If so, “the government is stuck with a second-best, or worse, product or service?”  I don’t agree with this logic saying “Should the government have to accept inferior products or services because we took an ax to the protest system?”

[Fara Fasat]

Not really. You're extending what I said. There could be many reasons for allowing protests. That is just one, and it certainly would not apply in all cases. In many cases a protest is sustained because the process was flawed or rules were violated, and the same contractor wins again in the recompetition. Other grounds for protest are based on maintaining the integrity and fairness of the system, and probably don't result in a better product being selected. But in a case where fraud or corruption leads to the selection of an inferior product, then yes, eliminating protests leaves the government stuck with that inferior product.

I'm saying that you have to understand the reasons for having protests in the first place. Somebody thought there was a harm to be addressed, and somebody created the protest system to address them. Were they wrong? Any reform must make the case that notwithstanding the harms, we are better off without the protests. 

[formerfed]

@Fara Fasat  Thanks for clarifying and I now understand your argument.  But I’m not extending what you said originally.  If fact this is what your post concluded with

Quote

It may be that the harm from protests (delays, costs, etc) outweighs the occasional second-best product or service. After all, the commercial world survives without protests. 

 

[Fara Fasat]

You're right, I should have been more specific that I was only referring to the one type of harm. There are others, and I do agree that we don't need the protest system to remedy those. For example, if there is a process mistake by the government (and there are many protests sustained on that basis), Vern's proposal is appropriate. Probably for most other protest grounds as well. My reservation is for acquisitions where the government gets less than it wanted. How do you remedy those ? That's one type of harm that is not remedied by just paying the costs of the losing bidder.

[Don Mansfield]

21 hours ago, Fara Fasat said:

But in a case where fraud or corruption leads to the selection of an inferior product, then yes, eliminating protests leaves the government stuck with that inferior product.

Why couldn't the Government suspend or T for C and re-evaluate?

[Vern Edwards]

On 2/29/2024 at 4:54 PM, Fara Fasat said:

Yes reform is needed, but is the answer to eliminate protests completely? What about the harm to the government? If fraud or corruption, or even just a poorly-conducted acquisition, leads to the government not getting the best product or the best services, how does "pay their costs" remedy that? Sure the harmed bidder gets compensated, but the government is stuck with a second-best, or worse, product or service. Should the government have to accept inferior products or services because we took an ax to the protest system?

Emphasis added.

Get real about your work world.

There is no evidence whatsoever that the current methods of contractor selection and contract award other than sealed bidding produce "best value." The average SSA could not give a coherent 15-minute presentation about concepts like value and risk. They could not provide a coherent explanation of the concept of evaluation factor. In most services acquisitions and many acquisitions of supplies the supposed "best value" determination is generally based on tradeoffs grounded on essay-writing  contests ("describe your proposed approach" " demonstrate your understanding of the requirement")—"proposals" that are even now being produced in part with technology like ChatGPT—and on half-baked analyses of "key personnel" and "past performance" based on scant information.

Conclusions about "value" are usually described in vague adjectival terms such as: Outstanding, Good, Acceptable, Marginal, or Unacceptable. See W. Edwards Deming's 1975 essay, "The Logic of Evaluation":

Quote

Any adjective that is to be used in evaluation requires an operational definition, which can be stated only in statistical terms. Unemployed, improved, good, acceptable, safe, round, reliable, accurate, dangerous, polluted, flammable, on-time performance (as of an airline or train) have no meaning except in terms of a stated statistical degree of uniformity and reproducibility of a test method or criterion.

What on earth does Good mean when applied to different proposals of various content? What is the margin of difference between Good and Acceptable?

Evaluation documentation is often poor and is often destroyed. At the end of performance no one compares what was described in the winning proposal to what was actually received and writes a comparative assessment. In many agencies the winning proposal is not seen again after the source selection.

And we have known for decades, since before WWII, that proposals are often based on desperate imagination and bull----. That knowledge is well documented.

And lastly, where is the evidence that protests have made acquisition better in terms of the value actually received? On what facts (not suppositions) do you base that notion? What they mainly do is ensure compliance with administrative laws and regulations. 

[formerfed]

50 minutes ago, Vern Edwards said:

And we have known for decades, since before WWII, that proposals are often based on desperate imagination and bull----. That knowledge is well documented.

I’ve taken a couple training sessions on proposal writing as well as attended many seminars on the subject.  One common point stressed throughout is address your proposal to what you discovered the agency really wants and not what the solicitation literally says.  The winner is the offeror that clicks off all the boxes with their words.  That doesn’t mean the agency got something better - it’s just the offeror that chose the right words won

[Vern Edwards]

I am often discouraged by how infrequently "professionals" in our business question underlying assumptions, theories, and doctrines. The OJT training they most receive does not encourage them to engage in self-interrogation, to inquire beyond official sources of information, to think deeply, and to ask challenging questions.

The motto of the acquisition reformer is: Question all assumptions, conclusions, explanations, doctrines, policies, rules, factual assertions, processes, and procedures.

The questions you must ask yourself everyday are: What do I really know about that?