Protest Accountability: Time For Enforcement

Protests are back in the news, although they never really left. I have been writing about this issue for some time (here and here), but the problem has only exploded in the last five years with the economic implosion, and now sequestration and budgeting Armageddon possible on the horizon.

A recent report from IBM’s Center for the Business of Government also highlight similar issues, but some of the recommendations made in the report are either not realistic or have no chance at implementation.

The current state of the acquisition workforce, and I am including the program office who will (or should) be evaluating a proposal, simply will not allow many of these recommendations to see the light of day.

The report should have focused on the only issues that need leadership support, which is to create confidence in the contract award decision, and to ensure industry understands the requirements, evaluation criteria, and why they did not win a contract.

Nonetheless, the current state of affairs when it comes to protests is only going to worsen unless accountability is brought into the fray.

Looking at the recent Government Accountability Office (GAO) report on protests, it is hard to not think that protests are out of control. Here is where I strongly agree with IBM’s report, as I have been an advocate of protest accountability for some time. How can one argue that some protests are not simply frivolous? I know of a company, an incumbent on a contract that lost a recompete, who admitted filing a frivolous protest to bilk the government for another three months of revenue while GAO made the decision. The basis for the protest bordered on absurd, but how often does that happen? More often than you think. It is a business decision no doubt, but only at the expense of the taxpayers and the mission.

Protests are disruptive, and firms need to be held accountable for reimbursing the government for losing protest after protest. Further, this is a demonstration of a bad actor, and should also be included in a firm’s past performance rating.

Conversely, firms should automatically be compensated for protests fees should they be upheld. It is a two-way street, and needs to be treated as such.

Protests are a fundamental right by a firm to correct a deficiency by the government. However, the data indicate that this right is being abused. Let’s bring this situation under control, and move forward.

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Profile Photo Peter G. Tuttle

Just as long as we do not equate frivolous with lost. Many protests are not sustained – not all of those lost are frivolous. Drawing a line between what is considered frivolous and non-frivolous may be difficult and a great deal depends on your perspective. Somehow constraining the right to protest may have an undesired effect by sending dissatisfied contractors straight to court, where they may be more successful than with GAO. So, beware. The cure may be more harmful than the disease!!!

Profile Photo Jaime Gracia

I don’t think that lost automatically equates to frivolous, but I have seen some real whoppers of protests as of late. Like the GAO data shows, small businesses are the ones submitting many of the protests, but there needs to be some repercussions for loss, after loss.

I know I am not advocating for a curtailment per se, but simply leveling the playing field for the taxpayer. Large firms protest more strategically, and small businesses need to be more strategic in the protests.

Until then, it should be made clear than continuing to lose protests is bad for business, and will have consequences.

Profile Photo Bob Vitelli

Jaime,

Thank you for posting this information. I agree that some contractors do abuse the protest law and something should be done about it. Some contractors also receive bad advice to go ahead with a protest when they shouldn’t have. I have documented this in a few cases that I followed up on in our region. Bottom line is that even when we win a protest we still lose because of the time, energy and expense it takes to defend one. Frivolous protests add to that pain.

Profile Photo Jaime Gracia

Rapacious lawyers could be put out of business through transparency, collaboration, and open communications needed for the process to work as it should. Protests are ultimately lose-lose, regardless of the outcome to either party.