3 Ways Bid Protests Can Help Improve Source Selection
Anyone involved in the government contracting process can tell you that bid protests cause a great deal of anxiety. From the stress caused by the ding on performance evaluations to the automatic stay and the loss of revenue, neither the government nor private industry view a bid protest as a positive.
Despite the discomfort that bid protests cause, there is a positive that can be found in the action. The bid protest is probably the best learning tool that contracting professionals can utilize to refine their source selection methods.
Now, before you shake your head, consider this; according to the GAO Bid Protest Annual Report to Congress for Fiscal Year 2017, the most prevalent reasons that bid protests were sustained in FY17 were:
- Unreasonable technical evaluation;
- Unreasonable past performance evaluation;
- Unreasonable cost or price evaluation;
- Inadequate selection decision; and
- Flawed selection decision.
All of these sustained protests were due to failures in the source selection process.
So what, you ask? How does knowing this information help refine source selection?
1. Learning from the mistakes of others:
GAO bid protest decisions are available on the GAO website https://www.gao.gov/legal/ for everyone to read. The decisions walk the reader through the process that led to the protest, apply the facts to the law, and render a decision. These decisions allow other contracting professionals to learn what their peers did wrong in their source selection process so they can avoid making the same mistakes.
2. Learning from your own mistakes:
Too often, a solicitation is rushed onto the street. Rushed solicitations usually have flaws and, more often than not, those flaws are in the evaluation criteria. For a multitude of reasons, those flaws are overlooked and it isn’t until the bid protest is received that the document is given the closer look it should have received prior to release. Using the allegations in the bid protest to review the solicitation can reveal failures that the eyes in the office have missed. Looking at evaluation factors from the eyes of the evaluated makes contracting professionals aware of how bidders understand the requirements. This is knowledge that can be applied when creating future solicitations.
3. Taking corrective action:
Fair or not, there is a perception that some in private industry simply file protests because they can. Perhaps this is true of some, which is why Section 827 of the NDAA requires unsuccessful protesters to reimburse the DOD for costs. It can’t be true of all, because bid protests can be very costly for the protester. Usually, companies protest because they sincerely believe that their bid was not evaluated properly, and had it been, they would have won the award. In these cases, the protester just wants to be treated fairly and will allow the government to conduct a re-evaluation of bids.
Although the contracting officer (CO) is responsible for the final source selection, the CO relies on the evaluations conducted by the technical evaluation committee (TEC). The TEC is comprised of professionals for whom conducting bid evaluations is an ancillary duty, and their lack of experience in conducting evaluations, or their lack of time to commit to the process while performing their actual duties, can lead to mistakes. The mistakes may not be obvious to the CO and a selection may not be made based on the best offer.
In these cases, the bid protest prompts the CO and the TEC to take corrective action. Re-evaluating the bids can identify mistakes that were made in the evaluation process or it can reaffirm that the correct decision was made. Either way, re-evaluations ensure the source selection process was conducted fairly and properly. After the re-evaluation, the award may still go to the original selectee, it may go to the protester, or it may go to another vendor. Whatever the result, the government can be confident that it has chosen the vendor best suited for its needs. The vendor, in turn, can be confident that is was treated fairly.
It is doubtful that bid protests will ever discard their negative connotation but, if they help improve the source selection process, perhaps they should be appreciated just a little bit.
If you require training on source selection or bid protests please visit the Management Concepts website at https://www.managementconcepts.com/.