How Would a Federal Agency “Protest Proof” an RFP?

Although protests are relatively a small percentage of contract actions, they are on the rise. For contract actions of significant amount, they are almost assured in this budgetary environment.

Case in point is CH2M Hill Antarctic Support, Inc. recently protesting a $2 billion contract won by Lockheed Martin Corp. to support the U.S. Antarctic Research program in the South Pole.

Many protests can be what I call “sour grapes,” nothing more than a business tactic to get another 90 days of revenue. The normal complaint is improper evaluation, unfair bias, etc. Basically, throw on the wall what seems plausible, and hope you can dig up enough dirt to make something stick.

Nonetheless, many 1102s that I speak to and support are almost terrified of protests, with good reason. Protests are disruptive, expensive, time-consuming, and create animosities between the agency and the protestor. I wrote an op-ed on this issue a year ago, and nothing has changed: http://bit.ly/yQ3INl

Some things that I focus on in supporting an RFP:

1) Sound requirements

2) Fair evalution criteria

3) Comprehensice training for the source selection team

4) Strict adherence to processes (as outlined in Source Selection Pan)

5) Comprehensive, detailed documentation to support a decision

6) Detailed, transparent debriefings to losing offerors

Questions:

  • What specific things does your organization do to ensure an RFP does not get protested?
  • What can or should be done to mitigate protest risk?

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11 Comments

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Profile Photo Peter G. Tuttle

Here’s a couple of simple common-sense rules of the road to stay out of trouble:

1) Follow the evaluation rules that you have published in the solicitation.

2) Don’t play games…like using a certain vendor’s spec (or solution description) for your requirement… and then claim you are doing a competitive procurement.

3) Be open, fair and honest with your communications. If a contractor cannot communicate with you or feels that they are being “played,” misinformed or ignored, they will find a way to pierce your veil of secrecy and get to what they think may be the truth.

4) Actually perform meaningful market research yourselves…don’t just rely on support contractors to do it. If you do have support contractors perform your research…better look at which companies they have relations with and who sits or whose board of advisors.

5) Know what you are buying – that means knowing the market, the technology, the economy, the field of competitors, etc. This can be considered market research too.

Cheers and have a great Holiday.

Pete

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Profile Photo Ron Falcone

First of all, the Government needs to quit taking protest personally — it costs contractors time and money to protest. Protests are checks and balances on the Government just like the Government has checks and balances on Contractors (Inspections, Acceptance, Cure Notices, etc…)

The Government needs to be held accountable too.

Having some recent experience with protests, as a small business it is very expensive to protest — extra time & effort, legal fees, distractions from pursuing other opportunities, etc.

Regarding sound requirements: Recently I’ve seen sloppy cut and paste of specs, reuse and rehashed functional requirements matrices instead of rticulating what the agency’s needs are (which seems to be a difficult thing to do these days)

Regarding debriefings: with many procurements being done under Interagency Acquisitions, especially GSA Schedules, the Government is not required to debrief unsuccessful offerors.

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Profile Photo Chris Hamm

@Ron Falcone – Try telling an 1102 who has poured their heart into doing something for almost a year not to take it personally. A protest is a challenge to the proper performance of an acquisition professional. While the majority of protests are frivolous, they nearly all allege errors made by the CO/KO (e.g., improper trade-off, failure to conduct discussions). Seeing your name on the first page of a letter from a law firm will make any 1102 upset. The natural reaction is to become even more risk averse, reducing communication, and harming the overall system.

The GAO protest statistics bear out the facts very clearly. Most protests are frivolous. 19% sustain rate in FY10. The impact of a protest takes 3 months for a team of lawyers, 1102s, and program/mission folks away from the intended goal of the procurement.

Back to Jamie’s question: How to make your solicitation protest-proof? I would argue that you should not even try. Doing so will drive your acquisition office too far to the compliance side of bureaucracy and away from the mission side. Companies are going to protest. The revenue implication is too great for incumbents. Just do what Pete Tuttle says (below), defend yourself when protested, and support your 1102s vigorously when it occurs.

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Profile Photo Sarah Schacht

That RFP’s are being contested should be no surprise. From what I hear from folks inside and out of government, the RFP process has become a overly long, costly process where only the most wealthy companies can afford to apply (and wait out the process). Going in, most governments know who they’re going to choose anyway. The RFP has just become a process to prove that government has “considered” all options.

Meanwhile, governments are spending far and above their private sector peers on tools and technology. I’ve seen governments consider $3-4 million dollar contracts that could have been fulfilled by a $9/month plan per office, commonly used in the private sector. But that service provider? They’ll never apply for an RFP because RFPs break their business model.

Frankly, I think more RFPs should be dismantled and rebuilt in a simplified, standardized structure.

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Profile Photo Jaime Gracia

Not taking it personally is difficult, as although my name may not be on the documentation, even I have been heavily invested for too long of a time to not care as much as my 1102 counterparts. Focusing on my #4 and #5 really seem to be the differentiators.

I agree with @Chris Hamm, protests are not in control of the government. However, the outcomes are a different story. Protests should not be part of any decision, or influence any decisions. Stick to the rules, have great supporting documentation, and defend the decision.

Nothing frustrates me more than to see agencies cave to a protestor and cancel a solicitation, give the protestor some work to go away, or simply cave to a protestor without a fight or due diligence.

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Profile Photo Sterling Whitehead

I like Sarah Schacht’s comment: “Going in, most governments know who they’re going to choose anyway. The RFP has just become a process to prove that government has “considered” all options.” This is a common , and in many cases valid, criticism of the RFP process.

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Profile Photo Steve Ressler

One idea I have is similar to NFL. You have the right to challenge a play but if you lose the challenge, you lose a timeout. And you only have a few to play each game. That may make folks think when they protest – if they have a good reason, they’ll still throw their flag. If they have a feeling that it’s probably okay, they won’t waste a challenge.

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Profile Photo Ron Falcone

@GovLoop: On the surface it sounds good (a challenge flag) but the Protest rules need to reformed.

The Government must be held accoutnable too.

Under the current protest rules, a contractor has no choice sometimes but to submit a pre-award protest in order to preserve their protest right after award. Timeliness is a big issue.

In some cases, even after industry question/answer period, the prospective contractor may find what it considers deficiencies in the solicitation in which the government refuses to take corrective action. The prospective contractor has to make a decision of whether to file a pre-award protest. If it does not, it loses its right to file a post award protest regarding the solicitation contents.

Another case can occur for a FAR Part 8 GSA schedule procurement. Since the agency does not have to provide a debrief to unsuccessful offerors, prospective offerors may have no other choice but to file a protest when apparent improprieties exist. In a similar circumstance, an agency indicated that it would provide a debrief. As the deadline for filing a protest drew near, the agency did nothing — no debrief — so a protest was filed. The protest uncovered substantial evidence that solicitation improprieties existed. The government was on record as saying that the protest was a defacto debrief.

These cat and mouse games only exacerbate an unhealthy federal acquisition environment.

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Profile Photo Jaime Gracia

My op-ed (link above in my original question) really gets at the heart of what I see as a process that needs to focus on the current issue; accountability on both sides. Protests should not be treated lightly on either side, but better communication can be a major step in the right direction.

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Profile Photo Ann McFarlane

It’s not necessarily protests you want to avoid – it’s successful protests you need to avoid. Once an agency suffers through some successful protests, that indicates your processes have problems. Making your evaluation process as objective as you can (vs. subjective) helps considerably. Documenting strengths and weaknesses of all proposals being reviewed – not just strengths of the winning proposal – also helps.

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Profile Photo Jaime Gracia

@Anne – Certainly the documentation is necessary to justify the decision, along with following processes established in the Source Selection Plan. However, having the transparency with debriefs, along with strict adherence to proper source selection procedures and discipline as you mention, can both prevent a protest or ensure a protest is denied. Trying to avoid a protest should also be considered, especially when you take a look at the costs and program disruptions.

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