Evaluation criteria evaluating the volume of protests an offeror engages in?

Steward said:

Out of curiosity, has any solicitation successfully included evaluation criteria that takes a look at the volume of protests an offeror files?  I ask due to the sheer disruption and often times few bad apples filing protests nearly every single time they lose, has there been any eval criteria that allows an agency to factor that in? 

This is more focused on small business procurements, rather than large $1B+ where a lot more is at stake financially, etc.  The $100M or less range

Thank you in advance

@StewardIf you evaluate that as a consideration (add evaluation criteria considering frequent protests) under an  factor and you don’t select the firm, what good is it? You said they will protest “almost every time” they aren’t selected…

I don’t think that you will accomplish anything other than provide another grounds for a protest, right?

The general thought/hope is to encourage those few over zealous protester firms to take a more zoomed out view (eval criteria example, 30% protest rate on total bids submitted will be considered a significant weakness / low confidence rating, etc) when considering to file a protest at the per opportunity level.  To rephrase, understanding the protest is a long shot, perhaps would opt not to file in a few cases.

Further- it provides the agency an additional clear weakness/hole in the ship so to speak to substantiate a non-award to the zealous protestor firm

I’ve seen something like that used a couple times.  The applicable factor was something like “ strategic partnering.”  It assessed offerors ability to collaboratively achieve agency program mission goals with the government.  Proposals asked for techniques that were successfully utilized, examples that could be verified, establishing and maintaining effective communications, etc.  Buried in the language was protests.  I don’t remember details but the gist was if a company found something they didn’t like in a solicitation or was wrong, they should be able to convince the government why and not submit protests.  In short, the factor implied the government wanted a contractor that was an asset.  Neither instance was protested and I’m not aware of anything else similar that was protested so I don’t know how this would fare if actually challenged.

I remember, by law or regulation, that an agency is not allowed to penalize a company because it protests a procurement or disputes a contracting officer's opinion.  It's probably in law.

Can an offerors history of bad-faith protest somehow be considered during source selection?

My basic very-much-not-an-expert understanding you'd have to pass two tests (_note to the actual experts on wifcon, please correct me her_e)

1) you'd have to demonstrate how that is tied to your RFP's requirements/objectives, expected to a discriminator, and an indicator of best value.  Basically, FAR 15.3.

As @formerfed wrote, maybe...  if you could reasonably argue what's evidence of an offeror having a propensity to file frivolous or bad-faith protests, and how that would be a negative.  I think that is possible in some specific cases, but generally would be very difficult to do.

2) Isn't prohibited by law, policy, or convention (i.e., there is NO history of protest decisions effectively squashing what you want to do)   

See comment by @bob7947 

My hunch is that you wouldn't be the first person to do this, and there is precedent ('case law' / protest decisions).

Contractors  and offerors have the legal right granted them by federal law to protest an award and dispute a contracting officer' decision.  You all know that!  You CANNOT penalize them, for them employing their rights.  If a government agency is going to use any device to punish an offferor or contractor for using their legal rights, you better have a cause that can hold up in some legal forum.

For example, look at this from the Administrator,  OFPP, entitled Protests, Claims, and Alternative Dispute Resolution (ADR) as Factors in Past Performance and Source Selection Decisions.

Quote

contractors should feel free to avail themselves of the rights provided to them by law. Accordingly, please emphasize to your agency’s acquisition personnel, especially source selection officials, that:

1. Contractors may not be given “downgraded” past performance evaluations for availing themselves of their rights by filing protests and claims or for deciding not to use ADR; and

2. Contractors may not be given more “positive” past performance evaluations for refraining from filing protests and claims or for agreeing to use ADR.

Emphasis added.

I hope your evaluations and preformance ratings do not include any type of punisment in them.

On the other hand, if someone is extremely abusive and disruptive, even GAO managed to ban one protester for a year, if I remember correctly.

I recall that OFPP memo.  I'm glad you referenced it.  Unfortunately, many contracting officers believe the government is always right and that certain contractors are bad actors.  However, consider this real life incident.  Years ago a clothing and textile contractor was lodging several complaints against the award of contracts to other contractors all of whom were small businesses.  It turned out that the contracting officer was engaged in a pay to play scheme where he demanded kickbacks for the award of contracts.  For example, the CO demanded $0.50 for each shirt awarded in a contract.  When the contract called for millions of shirts, that added up.  All the suppliers, except the complainer, were eventually debarred and many convicted.  The CO got the longest sentence imposed on a Federal official for procurement fraud, 7 years in prison.  This left only the complainant as the remaining supplier for military uniforms.  Large businesses, such as Levi's did not want to pick up the slack because eventually the procurements would be set aside for small businesses.  One CEO actually attempted suicide.  Maybe sometimes contractors that the government considers whinners are actually correct.

Steward said:

Out of curiosity, has any solicitation successfully included evaluation criteria that takes a look at the volume of protests an offeror files?  I ask due to the sheer disruption and often times few bad apples filing protests nearly every single time they lose, has there been any eval criteria that allows an agency to factor that in? 

This is more focused on small business procurements, rather than large $1B+ where a lot more is at stake financially, etc.  The $100M or less range

Thank you in advance

I don't understand what you can conclude about an offeror's ability to perform a contract based on the volume of protests they have filed. What does one have to do with the other?

bob7947 said:

Contractors  and offerors have the legal right granted them by federal law to protest an award and dispute a contracting officer' decision.  You all know that!  You CANNOT penalize them, for them employing their rights.  If a government agency is going to use any device to punish an offferor or contractor for using their legal rights, you better have a cause that can hold up in some legal forum.

Based on the posts, it sounds like a change in the right should be considered in this regulation/statute. For example, in California, you cannot file more than 2 Small Claims court actions for more than $2,500 anywhere in California in a calendar year even though providing a civil remedy for peoples' grievances is generally ingrained.

I remembered an effort in 2017 related to the National Defense Authorization Act.   Took a while to find something.  The link is shared below.   While not on point to the OP's inquiry it does provide an interesting view that I think is in part the basis for the OP's question. 

https://www.wiley.law/newsletter-Defense-Industry-Should-Be-Up-in-Arms-Over-Proposed-NDAA-Bid-Protest-Reforms

Don Mansfield said:

I don't understand what you can conclude about an offeror's ability to perform a contract based on the volume of protests they have filed. What does one have to do with the other?

Probably nothing if performance is defined in terms of strict compliance with the letter of the contract and fulfills everything required, perhaps at the minimally acceptable level.

On 9/14/2023 at 1:03 PM, Don Mansfield said:

I don't understand what you can conclude about an offeror's ability to perform a contract based on the volume of protests they have filed. What does one have to do with the other?

I can conclude that they are litigious in nature, which has been described by synonyms such as combative, contentious, disruptive and argumentative. I believe I take that into account every day in dealing with people and companies. It is expensive and mentally unhealthy compared to other options. The government would need to figure out how to define that in order to take that "quality" into account such that it is objective.

Neil Roberts said:

I can conclude that they are litigious in nature, which has been described by synonyms such as combative, contentious, disruptive and argumentative. I believe I take that into account every day in dealing with people and companies. It is expensive and mentally unhealthy compared to other options. The government would need to figure out how to define that in order to take that "quality" into account such that it is objective.

Some agencies tie this into items like demonstrated cooperation, communications, collaboration, partnering, etc.  It can be assessed through several means including conversations with clients, customers, and other business partners.

formerfed said:

Some agencies tie this into items like demonstrated cooperation, communications, collaboration, partnering, etc.  It can be assessed through several means including conversations with clients, customers, and other business partners.

it sounds like these "items" may not be an actual solicitation criteria and it does not include protest filings and results as an actual stated solicitation criteria. I am assuming there is nothing in writing that controls this type criteria?

@Neil Roberts  I can’t look up anything specific right now.  But from memory, these “items” often appear as sub factors under broader criteria in solicitations.  I also mentioned a couple examples agencies used in the past of “strategic patterning” in RFPs.   I tried contacting some individuals who used that approach but haven’t been successful so far

On 9/16/2023 at 7:16 AM, formerfed said:

Some agencies tie this into items like demonstrated cooperation, communications, collaboration, partnering, etc.  It can be assessed through several means including conversations with clients, customers, and other business partners.

I think that makes perfect sense. FAR 42.1501(a)(4) includes the contractor's record of "reasonable and cooperative behavior and commitment to customer satisfaction" on previously and current contracts as part of past performance information. However, an offeror's record of protesting is not within the scope of such an evaluation.

So I wonder if the protest matter could be used as a determination of nonresponsible?  If not then how could it be used in an evaluation matter?

I'm not saying it couldn't be used--I'm just questioning how useful it is in assessing an offeror's ability to perform a contract. I'm all for considering an offeror's "reasonable and cooperative behavior" in performing Government contracts. However, I don't think it's reasonable to impute an offeror's behavior in competing for contracts to their expected behavior when performing a contract. It seems needlessly punitive.

On 9/14/2023 at 5:27 AM, Steward said:

Thank you in advance

Steward - I ran into this and thought I would share.   I just thought it was an interesting connection to your original post.

Reference - https://www.gao.gov/products/b-413442

"Protest challenging the issuance of a task order to a large business concern is dismissed for abuse of process, and the protester is suspended from protesting for a period of one year, where the protester has submitted 150 protests this fiscal year, challenging an array of acquisitions (some of which were fully performed years earlier) conducted by a host of contracting agencies worldwide; has repeatedly failed to demonstrate that it is capable of, or interested in, performing the solicited requirements; and has repeatedly failed to engage constructively on the substantive and threshold issues raised by its protests."