Is Fear of Protests Guiding Your Behavior?
We often hear students and agencies wanting to know how to avoid protests. I think we first need to establish that companies competing for government business have a right to protest when they feel the source selection was improperly conducted. We believe properly conducted debriefings that communicate why the losing offeror was not selected significantly help to prevent protests that offerors feel are the only way to obtain a fair explanation. Other explanations for protests have been argued but the fact remains that transparency in the debriefing can effectively dissuade protests. Of course, failure to document the rationale for your decisions will not help.
Bob Antonio, owner of the website Where in Federal Contracting? (aka Wifcon), has posted a blog that summarizes the results of GAO-sustained protests over the period FY2013 through FY2015. As Antonio reports, many protests are dealt with at the contracting officer level and do not reach the GAO level. Further, the GAO statistics do not address protests that go directly to the Court of Federal Claims. Antonio points out that the top reasons why protests are sustained have not varied much over the FY2013 through FY2015 period:
- Failure to follow the evaluation criteria
- Unreasonable cost or price evaluation
- Inadequate documentation of the record
- Unequal treatment of offerors
- Unreasonable technical evaluation
- Unreasonable past performance evaluation
- Flawed selection decision
This information should be instructive as to what contracting officers can do to have the best chance of staving off protests and subsequently defeating any protests that are lodged. LPTA (lowest price, technically acceptable) seems to be used as a means of avoiding protests. The best way is to choose the source selection method that is best for the acquisition, do what you communicated in the solicitation, document your decisions, and provide meaningful debriefings.
While there is no way to protest-proof your acquisition–it is a right competitors have and it helps maintain a fair source selection process–you can help reduce the number of protests by avoiding the pitfalls others have suffered. Transparency in debriefings goes a long way to satisfy companies’ need to understand why they lost. Documenting your decisions is important for reasons greater than the mere act itself—it makes you consider if your rationale for the decision is supported and can be explained.
We’ll update this information when GAO releases the FY2016 data. Sustainment rates have declined over the period from 17% to 12%, so we hope to see continued reduction in the number of protests that are sustained.