Fiscal 2008 saw more protests filed at the Government Accountability Office (GAO) than any year in the past decade, and an increase of 17% over fiscal 2007. Looking further into these numbers, of those protests that went all the way to a final decision, 21% were sustained (meaning that GAO directed the buying agency to take some form of corrective action or relief in favor of the protestor). Finally GAO has reported that a full 42% of all protests filed were “effective,” meaning that either the protest was sustained or the agency voluntarily agreed to take corrective action. Okay, by now you’re saying that is interesting but why do I care and what does it have to do with baseball?
Here’s the importance and here’s the connection: if approximately 40% of all procurements subject to GAO review are susceptible to an effective protest challenge, then we can predict a number of things, none of which is very desirable. First, we can predict that the government is going to get more defensive about its award decisions for fear of being hammered by a protest. So, just like a pitcher who is facing a batter with a .350 batting average and .500+ slugging percentage, instead of being bold and awarding on a true “best value” basis, the government is going to “nibble around the edges” and pick the outcome that subjects it to the least potential grief-a walk, rather than giving up a home run. In procurement terms that often means an award to the low bidder, even where we question whether it can do the work.
Second we can predict that many existing contracts are going to be extended because of the automatic stay that prevents the buying agency (in most cases) from proceeding with a new contract that has been challenged at GAO-just as in baseball, where the game is extended while they pitch around a “tough out.” Finally buying agencies are going to be forced to spend significant time, effort, and dollars fixing procurements that have been challenged, a real concern given the scarcity of contracting resources-just as major league teams scour their farm systems or Japan to find that elusive middle-evening relief pitcher.
The end result is that the price of admission goes up, the outcomes are less advantageous, and unless you are a left-handed pitcher or a procurement lawyer, you have not profited from the experience.
Is there a fix or cure? Some in government have called for reforms making it harder for protests to be brought. An interesting idea, but one that is, at best, highly self-serving. Given that tax payer dollars are the “fuel” that underlies the procurement system, it is imperative that we have the ability to validate that those procurement dollars are being spent in a fair, reasonable, and responsible manner. That is precisely the role that protests serve within the procurement system. After all, in baseball we don’t let the pitcher or the batter call balls and strikes! The GAO bid protest function serves the legitimate and desirable function of ensuring that the game is played fairly.
So what’s the answer-or are we destined to have lots of protests and pain until better times return and vendors find it more profitable to go after new business than protest old? Perhaps, but perhaps not-and here is the final baseball analogy. Perhaps we could reduce the number of protests if buying agencies would bring in their own “umpires” and review their own proposed award decisions before they are finalized. The bottom line is that we are all humans, and the sad truth is that few of us have the ability to effectively judge our own work.
Procurement agencies should recognize this fact, and rather than hope that their work product meets the approval of the umpire named GAO, give consideration to commissioning realistic and independent assessments of their actions. This is precisely what industry does before proposal submission on major procurements-they commission a “red team” of independent reviewers to judge their proposal and provide constructive criticism. If the government would do the same thing on its side, no doubt many objectionable actions could be identified in advance, which in turn would greatly reduce the success rate and ultimately the numbers of protests.
Jim Phillips, Esq.
Find More Protest Articles
The demonstration staged yesterday by civil society activists to protest the demand by elected leaders for higher salaries has elicited varied reactions, wit…
Check out this crazy cow… http://www.youtube.com/watch?v=S2nHwrGHJbA May 14th 2013 Maserati wrecked outside Qingdao auto show in protest over ‘bad service’…
Video Rating: 2 / 5
Fierce resistance was sparked yesterday by the vicious beating of a 60-year-old former judge Ahmad al-Zir after so called “settlers” attacked him the previou…
Video Rating: 4 / 5