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This presentation by Paul R. Astiz outlines the significant impacts of federal procurement protests on government programs. It emphasizes the need for effective risk management strategies to mitigate both the likelihood and impact of such protests. The discussion covers protest types, outcomes, statistics, and key deadlines, while exploring reasons vendors protest and how to prepare for possible delays and budget implications. Attendees will gain insights into managing protest risks and ensuring transparency and fairness in procurement processes.
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Federal Procurement ProtestsRisk Management presented byPaul R. Astiz Principal, Enterprise Services Mission Area April 18, 2012
Introduction • Federal acquisition protest can significantly impact a government program • The impact is greater if the protest is sustained • A protest can put a program several months behind schedule and may result in significant additional costs Objective— Provide a basis for understanding and managing protest risks
Agenda • Protest Statistics • Protest Types/Protest Outcomes/Protest Timeline • Risk Management • Risk of Having a Protest • Risk of Having a Protest Sustained
GAO Protest Statistics Source: WWW.GAO.GOV – Annual Reports to Congress
Protest Types • An award or proposed award of a contract/task order • Solicitation or other request by a federal agency for offers for a contract for the procurement of property or services • The cancellation of such a solicitation or other request • A termination of such a contract, if the protest alleges that the termination was based on improprieties in the award of the contract
Protest Outcomes • Withdrawn • Dismissed • Technical or procedural reasons • Timeliness • Jurisdiction • Agency takes corrective action • Denied • Sustained
Protest Key Deadlines • Solicitation protests – Must file prior to bid opening or initial proposals due dates • Other protests – No later than ten calendar days after basis of protest is known or should have been known (whichever is earlier) • If debriefing is requested, then 10 days after debriefing • GAO may consider untimely protest if it determines that protest raises issues significant to the procurement system • Agency must file report to GAO with 30 days • Deadline for GAO to reach a decision within 100 days
Risk Management Strategies • Avoid risk • Transfer risk • Accept risk • Mitigate • Reduce impact • Reduce likelihood
Reducing Protest Risk Impact • Plan for protest and for protest being sustained • Budget • Contingency fund • Fiscal year boundary • Schedule • Possible 100 days delay • More than 100 days if sustained • Dependencies • Internal resource availability • Prepare for contract extensions • Impact on budgets • Don’t put the program on hold • Consider program activities not affected by outcome of protest
Reducing Protest Risk Likelihood • Reduce likelihood of protest • Understand why vendors protest • Reduce likelihood of sustained protest • Understand why protests are sustained
Why Do Vendors Protest?Reasons • Steve Roemerman (Lone Star Aerospace) 2010 Informal Survey • Why DOD contractors file protest? • Survey of vendors and government officials (59 participants) Source: Defense AT&L, November-December 2010
Why Do Vendors Protest?Environmental Factors Source: Defense AT&L, November-December 2010
Why Do Vendors Protest?Another Perspective • Analysis conducted by RAND Corporation on Air Force protests • Analysis of various Air Force procurement databases, GAO case outcomes, and Federal Procurement Data Systems-NG • Government makes mistakes • Faulty evaluations (62 percent) • Inconsistent with rules, regulations, policies, procedures, or RFP performance parameters • Faulty sourcing decision (18 percent) • Variety of reasons (sole source, small business, etc.) • Faulty RFP (17 percent) • Unfairly disadvantage vendor’s ability to respond • Restrictive specifications/requirement favor one/some over others • Faulty/unfair treatment of offerors (8 percent) • Faulty determination of out of competitive range • Improper closed discussions, with some bidders • Faulty determination to exclude proposal from consideration Source: RAND® Corporation - Defense Analysis of GAO Bid Protests in Air Force Source Selections Over the Past Two Decades, 2012 http://www.rand.org/content/dam/rand/pubs/technical_reports/2012/RAND_TR883.pdf
Why Are Protests Sustained?Selected Cases—GAO Decisions • Evaluation and Source Selection • Price and Cost Evaluations • Discussions • Past Performance Source: GAO Bid Protest Overview, Dec/2009, Selected Recent GAO Bid Protest Decisions, Aug/2007
Key Principles for Rulings • Did the government adhere to procurement laws and regulations? • Did the government adhere to the solicitation? • Was the government consistent with its evaluation? • Was the government fair and reasonable in its evaluation and decisions?
Evaluation and Source Selection Decisions • Source Selection Official’s decision to reject evaluator’s recommendation must have reasonable basis
Price and Cost Evaluation Decisions • Price/cost evaluation must be reasonable and meaningful • Consider all elements of price in the context of how they may apply; e.g., If price for location then evaluate all locations and not just some • Reasonable basis for determining overall cost to the government; e.g., don’t consider only certain unit prices and not others without reasonable basis • Cost Realism - Consistent with accounting standards • Adjusting vendor’s prices for comparison purposes without verifying with the vendor the assumptions/reasons for doing so • Lack of justification for higher price/technical superiority decision • Give adequate consideration to similarity of approach • Ensure technical superiority is adequately justified • Can not exclude technically acceptable proposal from competitive range based on technical rating without considering price
Past Performance/Experience Decisions • Evaluation must be consistent with evaluation criteria • Evaluation must be reasonable in its consideration of relevant experience • Can not downgrade past performance evaluation based on lack of relevant past performance • Grade as neutral if no relevant past performance • Equal effort must be applied to contact references • Reasonable conclusions for past performance if contactis not reached
In Summary . . . • . . . things to keep in mind . . . • Fair and equal treatment of offerors • Consistency across all aspects of the process • Source selection decisions are required to be documented • Factual and supported by findings • Adequately supported best value trade-off decisions • Evaluation must be reasonable and consistent with solicitation • Price Evaluation • Reasonable and meaningful price evaluations consistent with accounting standards • Adequate consideration of price and technical
Reducing Likelihood of a Protest Sustained • Clear and documented source evaluation process and procedures • Train/Educate Evaluators • Reasons why protests are sustained • Evaluation process/procedures • Identifying/Documenting findings & Justifying ratings • “…day wise, month foolish…” • Allow adequate time to familiarize evaluators with proposal • Evaluation time consistent with size and complexity of solicitation • Take time to prepare discussions/communication with offerors • Use acquisition support tools • Use consultants/experts to support evaluation and guide the process • Use technical SMEs in support of price analysis • Compare proposals • Embrace risk management
