Why protest?

[Guest Vern Edwards]

According to a study by The George Washington University Law School, described on page 11 of today's Washington Post, protests rarely result in the protester getting the contract. In fact, the protester goes on to win the contract in less than one percent of all cases. According to a dean at the law school:

Since lawyer fees can exceed $100,000 in fighting a contract decision, the study’s findings should give companies pause when deciding whether to protest...

The article is very brief and does not provide a link to the study. I presume it will be published in the future.

[Retreadfed]

From what I have read, the chances of winning a protest are greater than 1%, although a great majority of protests are denied. The fact that even if a protest is successful a contractor's chance of winning the contract is very slim indicates that contractors should pick their protest battles carefully.

[brian]

I suspect this might aggregate Agency Protests and GAO Protests.

The rate at which an Agency recognizes, after receiving an Agency Level Protest, that there was an error of some consequence on the part of the Agency, is approximately Zero. Some Attorneys practicing in this field will advise to never file an Agecy Level Protest.

The Agency Level Protest assumes a good faith response on the part of someone who is being accused of not doing their job properly.

I suppose it could happen, theoretically.

Page 5 of the "GAO Bid Protest Annual Report to the Congress for Fiscal Year 2012," GAO-13-162SP, dated Nov 13, 2012,

http://www.gao.gov/assets/650/649957.pdf (my browser had a lot of trouble with this link,)

shows a table of statistics on success rates of Protests at the GAO level. This Table shows an "effectiveness rate" of 42%, meaning that

"Based on a protester obtaining some form of relief from the

agency, as reported to GAO, either as a results of voluntary agency

corrective action or our Office sustaining the protest. This figure is

a percentage of all protests closed this fiscal year."

So, in those contracting offices where there is a manager who pays attention to when a CO screws up, there's at least a possibility that such malfeasance won't be repeated by the same CO in the same manner.

If you can believe that a sore loser contractor cares about improving the system, this is how we do it.

[Guest Vern Edwards]

From what I have read, the chances of winning a protest are greater than 1%, although a great majority of protests are denied. The fact that even if a protest is successful a contractor's chance of winning the contract is very slim indicates that contractors should pick their protest battles carefully.

When asked, I always say that a protest is a waste of time, always, unless all you want is vengeance by way of causing aggravation. If you file a protest challenging the terms of a solicitation you will not win many friends or influence many contracting officers. Unless you are a Boeing or a Lockheed, whom agencies fear because of their political connections and attorney power, you are unlikely to benefit from a protest. If you protest because you were not chosen for award, it is because they did not want to do business with you. Why bother suing them at your expense?

Having said that, protests work for one percent, and who knows, you might be one of that select group. But probably not. Protests are mainly a fool's game.

People think that they are entitled to something because they are dealing with the government and the government works for the taxpayers. They resent what often seems like high-handed attitudes of government employees, who feel harried by clueless people who think that the government is supposed to help them and that they're entitled to be hand-held. (The American sense of entitlement is really quite something to behold.) The clueless are a big tribe, and when they don't understand the complicated and arcane contracting rules they think that they are being mistreated, even when they aren't.

Amazing business.

[brian]

I'd like Dan Gordon to take a look at Protests before the Court of Federal Claims.

I think the results might be different.

The article notes that some protests are filed in order to find out what happened.

Agencies sometimes refuse to give debriefings, and debriefings can still leave a disappointed bidder not knowing why they lost.

Of course, not getting a debriefing is not protestable, so an actual or percieved error must be alleged in order to get the agency to prepare an Agency Report.

Vern,

your 11:49 AM post borders on being imperious.

"If you protest because you were not chosen for award, it is because they did not want to do business with you."

Technically, it is not supposed to be a matter of personal preference of the gov't technical folks who wins; the award is supposed to go to the offeror whose bid represents the best value.

While a government official may believe they know what would be the best value, regardless of what an evaluation in strict compliance with the terms of the solicitation suggests, that sort of personal insight (aka, "corruption") is supposed to be removed from the process. If a government official wants to give a job to a drinking buddy, let them do it out of their own pocket.

This report seems to validate my contention a month ago about the quality of GAO decisions, no ?

Does anybody except Vern still believe that, in general, CO's have better knowledge of the FAR than most contractors ?

I acknowledge that Vern, and most folks on this site, know lots more than me and most contractors about the FAR. So what ?

Y'all are the 1/10th of 1% outliers.

Most CO's wouldn't think to ask anyone for feedback on a site like this; they are, as I recently read, "high handed," unaccountable, and confident the GAO will bend over backwards to avoid confronting agency error.

Don't even bring up the "well nigh irrefragable" standard for bad faith, which is actually somewhat widespread.

[brian]

Industry isn't looking to hire the schlubs out of the 1102 field to work for them. They are trying to hire the kind of folks who frequent this site.

The same can be said of the GAO PLCG, and who leaves that office for industry.

Who does that leave to sign contracts for the Government, or to write GAO Decisions ?

[ji20874]

I've worked in a few Government contracting officers during my career -- not all of them, mind you, but a few -- I have never seen any malfeasance or corruption in award decisions, and never any bad faith -- maybe a mistake or two along the way, that's all. Best value decisions are made by humans, not by computers -- and based on any set of facts, reasonable people can sometimes disagree on which offeror represents the best value. In a way, contracting officer are like small claims court judges -- people come in, each with their case, and the judge is forced to make a decision -- automatically almost, one party is fgoing to be upset with the judge's decision -- similarly, a contracting officer must make a best value decision after the proposals come in. Not just Government, mind you -- buyers in all industries and organizations make these decisions. Sometimes, parties perceive mistreatment when there is none. Sometimes, what one sees depends on where he or she sits. Even though I haven't seen any bad faith in any of my work, I had been so charged by disappointed contractors.

[Retreadfed]

Vern, in regard to your post #4, I must be in the very small minority of those who have filed a protest against the contents of a solicitation, had the protest sustained by GAO and then got the contract. I have also been involved with post-award protests that were sustained and the contractor got the award. As a rule, I do not like protests and think they are a pain in the neck. However, if you pick your fights carefully, they can be useful. A couple of things I found to be helpful are don't make the protest personal and keep the lines of communication open with the contracting officer during the protest.

[Guest Vern Edwards]

Retread:

Congratulations for being among the one percent! You're in pretty exclusive company. snd I'm happy for you. However, your success notwithstanding, I still think protests are a waste of time. And money.

Brian:

I didn't say that, in general or otherwise, COs have a better knowledge of the FAR than most contractors. I didn't even suggest it. However, now that I think about it, I think it's true, although saying that they know more is not saying that they know a lot.

A final thought: In this thread you have said what "most" attorneys would advise and what "most" COs wouldn't think to ask. Excuse me for being imperious, but you don't know what most attorneys would advise and you don't know what most COs would think to ask, or have asked, at Wifcon. All the same, you are free to prognosticate.

[Guest Vern Edwards]

I've read some pretty good reports out of the GAO, the boards, and the courts of COs and/or other government officials acting in bad faith. However, in my experience most government officials bend over backwards to be fair. (In my opinion they sometimes go to ridiculous lengths in their efforts to be fair.) And there isn't much corruption.

In my experience, most protests arise out of disappointment, frustration, misunderstanding, self-justification and even despair. The thing to keep in mind is that the most that a successful protest gets you is a second chance to persuade the people who already turned you down that you are the right choice. As reported by GWU, in 2010 that happened in about one percent of all cases, at the cost of perhaps as much as $100,000. You do the math.

[woops85]

GovExec says the article is being published by Dan Gordon in the Public Contract Law Journal in the spring.

[Navy_Contracting_4]

Mr. Gordon's paper is available now through the Social Science Research Network. If you're not already registered, you may be asked to register and provide some information before you can download it.

[Guest Vern Edwards]

The general thrust of the thing is (1) protests are not so bad and (2) they serve a useful purpose.

[contractor100]

From today's WaPo. Possibly Burton was misquoted? It is this general perception of bad faith that feeds the protest bar, though.

"Federal agencies awarded $115.2 billion in no-bid contracts in fiscal year 2012, an 8.9 increase from $105.8 billion from 2009, according to government data. The jump unfolded even as total contract spending decreased by about 5 percent. Lockheed Martin, Boeing and Raytheon were top recipients of sole-source contracts.

Those top Pentagon vendors and other large contractors can draw on established relationships with procurement officers to claim a greater share of non-competitive work, said Robert Burton, former acting administrator of the Office of Federal Procurement Policy under George W. Bush."

[Guest Vern Edwards]

Business is about relationships. Businesspersons love the term "repeat business" and pursue it. From a strictly business standpoint, the government competition rules are artificial and unrealistic and not based on sound business principles, more so in some markets than in others. A lot of what is said about competition by people in government, especially members of Congress, is propagandistic.

Government acquisition personnel are like other business people. Once they find a company that they think they can trust, that they can work with, they want to stick with them, and will gladly pay a premium to do it. And they do it not just with large businesses. Many small businesses enjoy such relationships. I rely on relationships in my business when hiring a contractor. I have learned the hard way that competitive contractor selection can lead to a disaster. A lot of government people know that, too.

[vecchia capra]

Be careful when a reporter says or writes "no-bid contracts". My research on several instance where I saw that written and I had access to the contract information showed that the "no-bid contract" was either a delivery order from a competed single source ID/IQ contract or a contract modification. Reporters don't always know what they are talking about. They like to add emotional content by refering to things like describing a device to store ammunition as a "clip" and a .22 target rifle as an "automatic assault weapon".

[dcarver]

Those top Pentagon vendors and other large contractors can draw on established relationships with procurement officers to claim a greater share of non-competitive work, said Robert Burton, former acting administrator of the Office of Federal Procurement Policy under George W. Bush."

I'd have to somewhat disagree with that. It isn't even necessarily the relationships anymore, it is that those three companies have held the contracts for so long that they won't compete against each other even when the contract is put back up for competition. Without getting too far into detail regarding specific programs, these companies are making business decisions that the risk is too high to get into the programs now they are mature, even when given the chance to. It isn't that they don't have the relationship, it's just that they don't see the reward worth the risk of standing up an entire team to try to win it. These guys have the biggest connections, they can make the phone calls they need to. The relationship isn't the driving factor.

[bob7947]

Here is the Washington Post article mentioned above.

No-bid U.S. government contracts jump 9 percent, despite push for competition

[charles]

I think it is a bit disingenuous to infer protests are too cost prohibitive. Agency level protest and GAO level protests are relatively inexpensive. I think the costs for a KTR to send an email to the KO is negligible. In my experience GAO has provided some flexibility to the pro per/se KTR. Regardless, of costs, I agree most protests can be a waste of time, although, some protests I reviewed and advised on, were IMO meritorious, and agency corrective action was appropriate.

[woops85]

Re Vecchia Post #16. Don't forget the folks who erroneously use the term "sole-source" when referring to a competitive procurement process that resulted in a single bid.