The WashingtonExec Federal Acquisition Council spent an evening earlier this month discussing the lifecycle and decision-making process regarding if and when a contractor should protest an undesirable federal contract award outcome. The session, “to protest or not to protest, that is the question,” brought industry, government and legal perspectives. Ralph White, Managing Associate General Counsel for Procurement Law within the Office of General Counsel, U.S. Government Accountability Office (GAO), Greg Baroni, Chairman and CEO of Attain, LLC, and Don Carney, Partner at Perkins Coie spoke to the group of business development professionals.
Using statistics from GAO’s Annual Bid Protest Fillings FY 1985-2013, White provided context about how even though the federal contracting community sometimes claims that protests are “at an all-time high,” the number of protests filed each year are still well under the levels that were seen from the 1980s to 1990s in the industry. Less than one percent of all federal procurements are protested each year, according to GAO.
White also touched on GAO’s work in creating a new, completely online, Docketing System for contractors and representing counsel to file bid protests; he expects GAO to implement the program by the end of 2014. Fees associated with using the new system as well as other details are still under final review. A 25-year veteran of GAO, White informed the group that when his department evaluates the validity of a protest from a contractor, each final decision comes down to one simple question: “Did they do what they said they would do and did they treat people fairly?”
Representing industry’s viewpoint on the panel, Baroni provided insight into the decision making process of a potential bid protest from his perspective as the Chairman and CEO of Attain, LLC, a management and technology consultancy, as well as his experiences as President of Unisys Federal Systems and Global Public Sector Unit.
“Protests are simply part of the client/opportunity acquisition lifecycle today,” said Baroni. In the past, contractors may have tended to treat protests on an ad hoc basis, but according to Baroni’s acquisition framework, evaluating the company’s involvement in a potential protest, whether as an awardee or as the losing bidder, should be a regular and early part of the client acquisition/opportunity process.
In connection with a protest, questions that business development professionals should ask their teams before looping in the CEO and/or the executive group responsible for reviewing and approving the opportunity include: Is the opportunity related to gaining access to client(s)/opportunity through a contract vehicle or is it to provide service to a client? Was the original bid made to receive access to a contract vehicle or a task order? How might a decision to protest affect the relationship with the client? Will the company want to bid with the current and/or potential client for future contract awards? If a protest decision is made, does the company want to file on its own or follow others filing a protest?
“When evaluating the decision to protest, the client should be your main consideration,” said Baroni. “If you are an incumbent, you must evaluate your existing relationship with the client and how it will be affected. If you are not the incumbent, the protest should be viewed as a long-term decision about securing your relationship with that agency or office,” he said.
Don Carney spoke from the perspective of outside legal counsel, suggesting that contractors have better results when they anticipate potential protests, maximize the information available in the agency debrief, and bring legal counsel into the process as soon as possible. Outside counsel can provide an objective view regarding the merits of filing or intervening in a protest and help contractors understand the sometimes arcane procedures and substantive law of bid protests. As Carney explained, “bid protests are not the preferred means of dealing with the customer, but are sometimes necessary to protect the contractor’s business interests.”
“Like it or not, protests are increasingly a routine consideration in management reviews during the proposal lifecycle. We had three distinct perspectives on this topic at the roundtable, and representation from government, law, and industry. There was a surprising level of convergence about the pros and cons around protests, as well as very useful takeaways for council members to apply in the workplace,” said James Scampavia, VP of Business Development, AMERICAN SYSTEMS and Chairman of the WashingtonExec Federal Acquisition Council for Business Development Professionals.
The roundtable concluded with a lively discussion about how a company should unilaterally respond to a potential debriefing process when it loses a contract bid. Some attendees suggested that requesting an in-person debriefing, while promising not to protest the contract award, gives the losing bidder valuable intelligence and advice as to why the organization lost, and a better understanding on how to win work with the potential client next time around.
Each WashingtonExec Federal Acquisition Council for Business Development member selects one critical talent within the company’s BD unit to observe and participate in meetings. The Council also works closely with the George Washington University Master of Science in Government Contracting (MSGC).