Eliminating Bid Protests

Vern, that sounds like a fascinating paper, regardless of the inevitable pushback against it.  I've noticed that even a sensible tweak to the protest system, such as eliminating the "two bites at the apple" protests, meets furious resistance from the private sector (and private GovCon attorneys).  Since a private sector company is always on the receiving end of a serial protest, you would think that the private sector would be more moderate in its stance in that regard.  I believe the private sector GovCon attorneys (who have a vested interest in the status quo) lead the charge against any change to the system.  

It is interesting to note that our protest system shields certain actions from protests, but not others.  The main example of course being task/delivery orders that fall under the FASA thresholds of $10M/$25M.  It seems sort of odd to say that a $24M task order off a DOD IDIQ contract can be shielded from protests (except scope/period/max value), but a $2K procurement off a federal supply schedule can be protested at GAO or the COFC (or both, if the protester starts at GAO and then later files again at the COFC).   In other words, we *have* done what you are proposing to do on a smaller scale in the IDIQ context.  Has that resulted in some sort of crisis/lack of competition in the IDIQ realm?  No.  I think that fact strengthens your point.  

I'm not sure if I would peg the average cost of a protest to GAO's inflated B-numbers.  Frankly, I wish their annual report to Congress was more transparent for the uninitiated.  Only those who understand their B-Number methodology know that their annual report is inflated.  For example, I can only find 289 published protest decisions from GAO for FY23.  I can find about 100 COFC protest decisions for that same FY, and 3 from the CAFC. 

That said, I think it is an excellent (and timely) topic, and I really look forward to reading it.

One additional point on protest costs.  It would be helpful to know how much NIH ultimately paid out to protesters under the two CIO-SP4 protest decisions that were sustained in FY23: Systems Plus and Phoenix Data.  Phoenix Data involved 27 protesters (not represented by counsel) and 28 B-numbers, whereas Systems Plus involved 64 protesters (represented by counsel) and 98 B-numbers.  Both decisions "recommended" that NIH pay reasonable costs including attorneys' fees.  I'd be curious to know if a FOIA requestor could get at least the total bill that was paid (with taxpayer dollars) in those two sustained protests (of the same procurement).  I note that a lot of the protesters in System Plus were represented by some of the largest law firms out there.  It would be helpful to know how much of the protest costs were actually borne by the Government, and how much was not reimbursed.  The data from that one case could be illuminating.

I think it’s a great idea but would be super hard to implement. Maybe scale it down as a phased approach. By that I mean start with a no GAO protests against things the Government isn’t great at, like IT procurements first and then move on from there. I don’t have a roadmap but that would be the idea. Final phase would be eliminate GAO protests.

Also, since GAO recommends the Government cover the protesters costs if the Government loses a protest, maybe GAO also recommends the denied protester covers the Governments cost, inclusive of delay costs, etc. maybe that’s already a thing or just makes further litigation costs I dono just typing outload loud if you will as an alternative.

Vern, some matters for consideration:

How would your proposed process address those rare situations such as those presented by the Darlene Druyun and Boeing scandal where it took years for contractors hurt by her to find out the truth?

If you convert protests to claims, would you exempt such claims from the Equal Access to Justice Act?

If the object of the changes is to make agencies responsible for their procurements, would you eliminate DoJ from the process before the COFC?

For consistency, would you make the standard of review the same for claim appeals submitted to the cognizant appeals board and COFC?  If so, what would that standard be?

Would an appeal to the CAFC be permitted under this process?  If so, would you eliminate DoJ from that process?

As an ancillary matter, how would your system deal with size and status protests to the SBA, and possibly the COFC?

If you make protests subject to the CDA, would you make the CDA time lines applicable to such claims and would you establish a time within which a decision has to be made by the appeals board or COFC?

Vern, I really like it.  My only suggestion is adding some timeframe for the HCA to respond to solicitation terms complaints.  It certainly would be awkward to acknowledge merits of a complaint after the solicitation closes as well.

Thoughts in no particular order.... 

First the subject.  As I read the subject line and the  original post the idea is not to eliminate the ability to protest but to change how to and the venue(s) to do so.  A protest renamed?

Unfunded or funded mandate?  Agency funding would need to be increased to handle the administrative efforts under the change and establish the recovery fund.  Would the change establish additional funds or keep agency funding the same?

Quality assurance reviews.  Would there be a set time limit for these reviews?  Large procurements have a lenghty PALT as it is.

Benefits -The benefits seem one sided advantage government. Yet an element of private industry no doubt thinks there is benefit to have the ability to protest. It is they that will be the hurdle to clear for a change to occur unless they are convinced something is in it for them.  Agencies do screw up sometimes.

Currently protests can be made to the agency.  The private sector may view the change as just another effort to allow agencies to kick them aside.  Examples are the current ability to protest to agency and fair opportunity ombudsman, two approaches that agency's have little policy and procedure regarding.

Somewhere hidden in the idea is the gem, a carrot/stick, which I like.   If I am reading right complaint to agency, they solve the suggested inconsistency at some level during solicitation process and all are happy....done.  All move on.  Complaint to agency, they don't solve and there is no allowance to delay during complaint process, like a dispute responsibility of all to just move forward.  However contractor has right to what I will call a post solicitation appeal and if successful agency pays.  Seems like an agency would take a more serious approach to solving as they should already be doing.

Hope the thoughts make some sense and are helpful.

On 11/20/2023 at 9:10 AM, Vern Edwards said:

I am thinking of arguing that the annual cost to the taxpayers in terms of the effects on government operations is too great and that the benefits of the protest system are not worth it.

Vern, you and I both know that moral hazard will doom most cost arguments in Congress.  It's how we got here.  Speak instead to mission detriment and mission failures.  Be specific.  Research - as intensively as you have ever researched - the actual occurrences, agency-by-agency, DOD component-by-component.  Report exactly what the opportunity cost was for every sustained protest in terms of decreased effectiveness or lethality.  As for the denied protests, shine a light of truth on what exactly happened in the sole-source negotiations of each POP extension required due to a protest period delay.  Based on the introduction I read to the Foreign Affairs article (below), recommend you begin with DTRA and NNSA acquisitions.  Surely a boondoggle or two will come up if you survey the right people.  Retirees of these agencies can speak to anything unclassified.

Quote

The United States now confronts graver threats to its security than it has in decades, perhaps ever. Never before has it faced four allied antagonists at the same time—Russia, China, North Korea, and Iran—whose collective nuclear arsenal could within a few years be nearly double the size of its own. Not since the Korean War has the United States had to contend with powerful military rivals in both Europe and Asia. And no one alive can remember a time when an adversary had as much economic, scientific, technological, and military power as China does today.

Congressional decisions live and die by public opinion, and it is sad but true that public opinion now operates on emotion rather than reason.  As you are an expert writer, I recommend you know your audience.  They're not frugal.

Here are my thoughts:

1. I am in favor of removing the GAO from the bid protest process. I've always held this opinion. The Legislative Branch has no business reviewing individual solicitations and award decisions of agencies.

2. I am in favor of a venue like an agency board of contract appeals that an interested party can appeal to after receiving a decision on a protest from the contracting officer--like the disputes process.

3. I am not in favor of eliminating the COFC's bid protest jurisdiction. From a balance of powers perspective, I think that executive branch decisions regarding how it plans to conduct an acquisition and how it chooses a contractor should be subject to judicial review.

Vern:

I have one comment.  You suggest

Quote

CO decisions on such claims would be appealable to the cognizant board of contract appeals or to the COFC.

I suggest that the CO decision get one oversight appeal and that be limited to the appropriate board of contract appeals.  You get the COFC out of the protest process.  Don't let them back in at the end.  With the COFC you get the CAFC and SCOTUS.

Thanks to all for the opinions and advice.

@Voyager

Voyager said:

Speak instead to mission detriment and mission failures.  Be specific.

Right on! Thank you very much. I will.

I will publish my piece in The Nash & Cibinic Report, and with Thomson Reuter's permission I will provide it to Bob for release here.

Happy Holidays to all.

Vern

On 11/20/2023 at 6:10 AM, Vern Edwards said:

In place of the current protest system, agency heads would be required to establish formal and formally-documented in-house pre-award quality assurance reviews of prospective source selection decisions for procurements in which the award value is in excess of $100,000,000. The reviews would be limited to the proposal evaluation and decision-making processes. The reviews would have to be independent of the contracting office that conducted the process and made the award decision and would be subject to approval by the agency head or the HCA.

Rather than limiting solicitation challenges to the agency head or HCA, I would like the CO to be an option similar to your revised procedures for protests against the award decision. If the protestor and CO can’t reach an agreement then the agency head or HCA implement the revised process above.

 Happy holidays!

On 11/21/2023 at 8:49 AM, Voyager said:

Speak instead to mission detriment and mission failures.

This is great advice and should be coupled with the financial impact to the taxpayer. Considering all of the voices of key customers will lead to a more persuasive advocacy. For example, taxpayers may not see the current protest scheme as something they would be willing to pay for if they had an accurate idea of what they were getting in return.

Jamaal Valentine said:

Rather than limiting solicitation challenges to the agency head or HCA, I would like the CO to be an option similar to your revised procedures for protests against the award decision. If the protestor and CO can’t reach an agreement then the agency head or HCA implement the revised process above.

 Happy holidays!

This brings up the need to discuss why the current agency level protests procedures aren’t working.

On 11/23/2023 at 10:01 AM, Jamaal Valentine said:

This is great advice and should be coupled with the financial impact to the taxpayer. Considering all of the voices of key customers will lead to a more persuasive advocacy.

The persuader may leverage the following information.  See pages 30-32 of the GAO Performance and Accountability Report for 2020, and pages 22-24 of the GAO Performance and Accountability Report for 2023.

• GAO’s Scorecard—How we saved the federal government $77.6 billion this year | U.S. GAO
• GAO’s Scorecard—How We Saved the Federal Government $70.4 Billion This Year | U.S. GAO

Strategic Goal 3 ("OGC") appears to be the place to look for any contributing statistics from bid protests.  Based on the examples given, GAO's self-reported savings appear to be from its functions other than protests.

On 11/23/2023 at 11:11 AM, formerfed said:

This brings up the need to discuss why the current agency level protests procedures aren’t working.

See the table included in this Report to Congress: B-158766, GAO Bid Protest Annual Report to Congress for Fiscal Year 2022.  I wonder if GAO's successful ADR people could be provided for agency use IAW FAR 33.103(c)?

Voyager said:

I wonder if GAO's successful ADR people could be provided for agency use IAW FAR 33.103(c)?

It might but I doubt it would be as successful.  Both agencies and contractors respect GAO for many reasons - chief being knowledge, impartiality, and position of authority.  Whether the assessment is fair or not, industry doesn’t see that as much with agencies.   So I think that’s why industry is not utilizing the agency process so much

On 11/23/2023 at 10:01 AM, Jamaal Valentine said:

This is great advice and should be coupled with the financial impact to the taxpayer

I don't know if this mindset still exists in congress, but some time ago a very powerful congressman (whose name I have forgotten) was quoted as saying "one protester is worth a thousand auditors."

Probably William Proxmire.

Joining this parade a bit late. Whatever happened to the NDAA proposal that would force large unsuccessful protesters to compensate agencies for time spent defending source selection decisions? That seems like a logical first step and it vanished into the ether almost as soon as it was proposed. 

When we can't even agree to hold large unsuccessful offerors financially accountable for their frivilous bid protests, how can we expect to revamp the entire system? 

I agree with other posters that COFC should remain, as well as emphasizing ADR in some cases. 

I will say that my current agency has a robust quality assurance process in place for source selections and it has dramatically improved our documentation. Despite this, the protest rate is still very high especially from unsuccessful incumbents who just want to milk a few more months' fee from their contracts.

It was Section 804 of the House version of the FY 24 NDAA, but was not adopted in the Senate version, and was dropped.  See: FY2024 NDAA: Department of Defense Acquisition Policy (congress.gov)   See the House provision here:  BILLS-118hr2670rh.pdf (congress.gov)

I don’t think it was an effective way to curb protests anyway, so I think it was wise that they dropped it.  It would have been cumbersome to implement, and I highly doubt it would have moved the needle at all in terms of filing bid protests for several reasons.  

First, as you mentioned, it was limited to large DOD contractors (with revenues above $250M).  I don’t believe that the threat of potentially having to reimburse the agency for their costs would be a significant deterrent to large companies in most cases.  Outside counsel from the large law firms representing these companies have partner fees at or exceeding $1K/hour. A GS-15 agency counsel, by contrast, is likely around $100/hour, depending on how you divide their salary into hours. I don’t see this as a meaningful deterrent, particularly when discussing high-dollar contracts. 

Second, I think this would be a mess to implement. Most agency attorneys are not trained (or required) to account for every increment of time allocated to a particular case/issue. It is one of the main benefits of being a government attorney. If this was passed, the odd result would be that agency counsel would be penalized by having to account for every increment of time they spend on bid protests. It’s not clear how they would calculate these costs.  Further, would that time tracking apply to attorneys only? Contracting officers too? Requiring activity personnel? Anyone who spent any time at all on it?  What about the costs of pulling all of this information together?  Where would the funds go? ... absent specific statutory language, it would just go to the Treasury under the Miscellaneous Receipts Statute (31 USC 3302), and the agency would never be able to use a dime of it.

Third, what if it was denied by the GAO and then re-filed in the COFC where the COFC sustains the protest ... perhaps on new evidence the Government was forced to divulge in its agency record that wasn't disclosed at the GAO?  Would they still have to pay because they lost at GAO first?  That sounds unfair. 

Fourth, what is the protester's recourse if the agency is unreasonable in the final bill (or it is based on errors)?  I could see that spurring additional litigation and just more costs and time wasted by the agency.

Finally, defense agencies prefer GAO protests over the more time-intensive and costly COFC protests.  The pilot program only applies to GAO protests, so why would DOD want to encourage protesters to file at the COFC instead of GAO? (I recognize they are not exclusive forums.) 

I think it’s a knee-jerk reaction that only makes sense on the surface.  Ultimately, I think it's just a bad idea.

I am badly citing something I've read/heard before, but it says basically -- if you want to eliminate something, first you have to answer why it exists. In this case, why are bid protests allowed? They have no equivalent in the commercial world, so how do companies survive without it? As I have said in many classes - you lick your wounds, learn from your loss, and move on to the next opportunity.

Before even addressing the costs, the delays, etc, you must address why protests exist, and then explain why the harm from removing protests won't outweigh the interests that are being protected. In other discussions on this forum, some have stated that government money is taxpayer money, and that COs have a sacred duty to use that money fairly. Is that the reason?  Is that a better reason than the fiduciary duty a corporation has to its shareholders? Are there reasons other than making sure that taxpayer money is fairly handed out?

I realize I'm just throwing out some thoughts, not solutions. But you're the deep researcher, not me. 😀

Fara Fasat said:

I am badly citing something I've read/heard before, but it says basically -- if you want to eliminate something, first you have to answer why it exists. In this case, why are bid protests allowed? They have no equivalent in the commercial world, so how do companies survive without it? As I have said in many classes - you lick your wounds, learn from your loss, and move on to the next opportunity.

Before even addressing the costs, the delays, etc, you must address why protests exist, and then explain why the harm from removing protests won't outweigh the interests that are being protected. In other discussions on this forum, some have stated that government money is taxpayer money, and that COs have a sacred duty to use that money fairly. Is that the reason?  Is that a better reason than the fiduciary duty a corporation has to its shareholders? Are there reasons other than making sure that taxpayer money is fairly handed out?

I realize I'm just throwing out some thoughts, not solutions. But you're the deep researcher, not me. 😀

Private companies are presumed to act in their best interests and focus on generating a profit and typically must report to shareholders and the BOD.  The Federal Government does not have the same natural predator to sloth, corruption, and errors.  Here's a partial list of the reasons that are often cited for having a protest system:

(1)    The protest system promotes private sector confidence in the procurement system, thereby increasing competition.

(2)   The protest system increases the public’s confidence in the integrity of the procurement system.

(3)   The protest system protects contracting officers from internal agency pressures to act improperly.

(4)   The protest system provides for transparency and protects the integrity of the U.S. federal acquisition system.

(5)   The protest system provides offerors who dedicate substantial resources to participate in a federal contract competition with an effective, relatively low cost and expeditious way to challenge violations of procurement statutes, regulations, and/or the terms of a solicitation.  

(6)   History has shown that only a fraction of a percent of federal procurements are protested, and therefore the oversight/transparency benefits outweigh the direct costs arising from actual protests. 

(7)   It serves as a model for developing nations to emulate, thereby promoting the US interests abroad in terms of anti-corruption efforts.

Fara Fasat said:

They have no equivalent in the commercial world, so how do companies survive without it?

In the commercial world, companies are largely allowed to contract with whomever they want , based upon business decisions as well as established business relationships or to foster new business relationships.

During the era of predominantly sealed public bidding processes, the government had very little choice regarding who won the contracts and there was little incentive for most firms to even get along with their government counterparts and vice versa , let alone develop positive working relationships. We kept getting many dirtbag, low bid construction contractors, especially among the small businesses. I often dreaded attending or conducting post award meetings with unpleasant contractor reps.

I was only involved in about three construction protests, one service protest and no design-build protests in the 90 or so source selections that I either conducted, oversaw or otherwise participated in after we moved to competitively negotiated acquisitions. We managed to prevail or eventually prevail in those protests

And - virtually all the dirtbags that previously haunted us either disappeared or shaped up!

I know I'm late to this party, but in case Vern, you are still developing arguments, at the very least I would hope to see that if we are stuck with the current GAO protest venue, that Congress could change the process to REQUIRE that contractors first have a debriefing, and if they still want to protest after that they have to start with an agency-level protest.  I've seen too often that a contractor protests to GAO without even getting a debriefing, when a debriefing or CO/agency protest could have likely resolved the issue much more quickly, and much more cheaply for all parties.

On 1/18/2024 at 10:56 AM, Me_BOX_Me said:

Joining this parade a bit late. Whatever happened to the NDAA proposal that would force large unsuccessful protesters to compensate agencies for time spent defending source selection decisions? That seems like a logical first step and it vanished into the ether almost as soon as it was proposed. 

When we can't even agree to hold large unsuccessful offerors financially accountable for their frivilous bid protests, how can we expect to revamp the entire system? 

I agree with other posters that COFC should remain, as well as emphasizing ADR in some cases. 

I will say that my current agency has a robust quality assurance process in place for source selections and it has dramatically improved our documentation. Despite this, the protest rate is still very high especially from unsuccessful incumbents who just want to milk a few more months' fee from their contracts.

Also - Seems like the proposal (as constructed) would encourage much more bidding, with the hopes of recouping solicitation costs on a technicality. So it would save the government money on the protest end, but would also draw out evaluation times.

Very late to the party, but wanted to mention from industry perspective. My two cents: I am not against protests nor the GAO in principle since they do have value, but I am against protest trolls and terribly devised procurements.

I have encountered protest trolls that love to whine to hold up the government and the awardee. I don't know how to hold these firms accountable since they often have deep pockets to litigate anyone into oblivion. Maybe DoJ handling it would help over GAO? 

The other underlying thing here is how the Government holds agencies accountable for having procurements that are a hot mess (case in point is CIO-SP4) or use terrible evaluation tools (GSA CALC). Can the Government fine itself aside from suggesting they pay for costs of an protester's protest fees?

CuriousContractor_22 said:

The other underlying thing here is how the Government holds agencies accountable for having procurements that are a hot mess (case in point is CIO-SP4) or use terrible evaluation tools (GSA CALC). Can the Government fine itself aside from suggesting they pay for costs of a protester's protest fees?

That is a good point.  I understand how inexperienced or contract specialist/contracting officers lacking in knowledge can get in over their heads and receive protests.  But there’s no excuse for agencies to allow those actions obviously at fault to proceed to GAO.  How about the agency SPE and head legal advisor certify they personally reviewed the contract file/protest response and support proceeding?

I don’t see the agency fining itself as beneficial but I do think some of the protests will be resolved by the agency itself if the SPE and Chief Counsel personally verify the actions as sound.  Their reputations are at stake.

On 2/2/2024 at 3:50 PM, Mike_wolff said:

I know I'm late to this party, but in case Vern, you are still developing arguments, at the very least I would hope to see that if we are stuck with the current GAO protest venue, that Congress could change the process to REQUIRE that contractors first have a debriefing, and if they still want to protest after that they have to start with an agency-level protest.

I now think that part of my proposal will include the elimination of mandatory debriefings.

I think the concept of bid protests has outlived its usefulness. The government should promise to evaluate proposals fairly. After contractor selection it should be required to give every offeror an unexpurgated copy of all the government's documentation of the evaluation of its proposal and the basis for its source selection decision.

If an offeror thinks the government did not properly evaluate its proposal it should be able  to submit a claim for its bid and proposal costs based on breach of implied contract to the CO for final decision, with appeal to a board of contract appeals or the  court of federal claims, just like any other claim. If a CO wants to explain the selection in an attempt to settle out of court, so be it.

No CICA stays, no preliminary injunctions. No agency-level protests. No GAO or COFC protest. No GAO recommendations or COFC retraining orders or injunctions.The protest tribunals should be able to provide only monetary relief.

That's it.

If the government is found to have breached the implied contract and the contractor is entitled to compensation, the funds should come out of the agency's program or operating appropriation. If the agency is found to have broken the law in making its decision the SSA and/or the CO should be subject to appropriate discipline.

We can no longer afford to delay procurements for months or even years while waiting for protest to reach their ultimate resolutions.

Agencies should have to report all of their B&P claim payouts and disciplinary actions to the American public.

Enough of the madness.

Vern Edwards said:

If an offeror thinks the government did not properly evaluate its proposal it should be able  to submit a claim for its bid and proposal costs based on breach of implied contract to the CO for final decision, with appeal to a board of contract appeals or the  court of federal claims, just like any other claim. If a CO wants to explain the selection in an attempt to settle out of court, so be it.

No CICA stays, no preliminary injunctions. No agency-level protests. No GAO or COFC protest. No GAO recommendations or COFC retraining orders or injunctions.The protest tribunals should be able to provide only monetary relief.

That's it.

If the government is found to have breached the implied contract and the contractor is entitled to compensation, the funds should come out of the agency's program or operating appropriation. If the agency is found to have broken the law in making its decision the SSA and/or the CO should be subject to appropriate discipline.

We can no longer afford to delay procurements for months or even years while waiting for protest to reach their ultimate resolutions.

I really like it.  But will agency reviewers and particularly legal counsel add comparable delays in scrutinizing files before awards?

Deleted.

formerfed said:

I really like it.  But will agency reviewers and particularly legal counsel add comparable delays in scrutinizing files before awards?

Who knows?

The FAR Part 15 source selection process and the processes modeled on it are stupid beyond repair. Not because of rules, but because of the ways that agencies choose to conduct it and dumb evaluation factors like "soundness of approach."

Vern Edwards said:

No CICA stays, no preliminary injunctions. No agency-level protests. No GAO or COFC protest. No GAO recommendations or COFC retraining orders or injunctions.The protest tribunals should be able to provide only monetary relief.

That's it.

I like it.

Vern Edwards said:

No CICA stays, no preliminary injunctions. No agency-level protests. No GAO or COFC protest. No GAO recommendations or COFC retraining orders or injunctions.The protest tribunals should be able to provide only monetary relief.

Vern, how would your system handle those rare situations where the SSA acts unethically or criminally such as in the Darlene Dryun case or the situation that occurred years ago at DLA's Personnel Support Center in Philadelphia where the CO was demanding kickbacks from the winning contractor on competitive procurements?  In the former case, as I recall there was no evidence that Boeing colluded with Darlene, while in the DPSC situation, the contractors clearly did collude with the CO.

On 2/29/2024 at 12:03 PM, Retreadfed said:

In the former case, as I recall there was no evidence that Boeing colluded with Darlene,

Retreadfed, there was evidence…

Michael Sears — chief financial officer at Boeing. Negotiated Druyun’s post-retirement employment with Boeing. Convicted for role in the scandal, served a four-month prison sentence.

Phil Condit — chief executive officer of Boeing. Forced to resign as a result of the deal.

See https://sites.tufts.edu/corruptarmsdeals/the-boeing-tanker-case/#:~:text=The case stemmed from a,Department of Defense (DOD).

Retreadfed said:

Vern, how would your system handle those rare situations where the SSA acts unethically or criminally such as in the Darlene Dryun case or the situation that occurred years ago at DLA's Personnel Support Center in Philadelphia where the CO was demanding kickbacks from the winning contractor on competitive procurements?  In the former case, as I recall there was no evidence that Boeing colluded with Darlene, while in the DPSC situation, the contractors clearly did collude with the CO.

@Retreadfed, you don’t have to protest in the event of such criminal activity.

Retreadfed said:

Vern, how would your system handle those rare situations where the SSA acts unethically or criminally...

I think an injured contractor should be able to seek B&P costs and attorney's fees by submitting a claim for breach of implied contract to evaluate proposals in compliance with law and regulation and the terms of the solicitation. The SSA should be prosecuted for any criminal violation. If there is misconduct short of a criminal violation the SSA should be disciplined (demoted or fired) in accordance personnel rules.

joel hoffman said:

Not true..

Thanks for clarifying.  I was going strictly from memories of events long ago.

joel hoffman said:

@Retreadfed, you don’t have to protest in the event of such criminal activity.

A contractor never has to protest a procurement.  However, I know in the Dryun case there were several protests following her conviction by contractors who had been victimized by her corruption.  Although filed several years after the fact, the protesters only became aware of the basis for a protest after her conviction so the protests were timely.

Vern Edwards said:

I think an injured contractor should be able to seek B&P costs and attorney's fees by submitting a claim for breach of implied contract to evaluate proposals in compliance with law and regulation and the terms of the solicitation.

Thanks.

Yes reform is needed, but is the answer to eliminate protests completely? What about the harm to the government? If fraud or corruption, or even just a poorly-conducted acquisition, leads to the government not getting the best product or the best services, how does "pay their costs" remedy that? Sure the harmed bidder gets compensated, but the government is stuck with a second-best, or worse, product or service. Should the government have to accept inferior products or services because we took an ax to the protest system?

This leads back to my original post about understanding why there are protests in the first place. I refreshed my vague recollection, and the principle is known as "Chesterton's Fence", named for a concept introduced by English author and philosopher G.K. Chesterton. The most condensed version of this is: 'don't remove a fence until you know why it was put up in the first place.' Failure to address the reasons for its existence can lead to unintended consequences, or a worse situation than what existed before.

Let's assume that one of the reasons for the protest system is to ensure that the government gets the best product or service for its money (excluding LPTA of course). If we simply pay off the losing bidder, we have left that harm in place. Are we better off by tearing down the protest fence and letting in the harm, or is that harm outweighed by the harm of the extra delays and costs of protests? 

It seems to me that a proposal to reform the protest system needs to take each reason for the existence of protests, and answer two things: 1 - is the reason valid, or can the acquisition system function adequately without fixing that reason via protests? If the reason is valid,  then 2 - does the proposed reform maintain a remedy for the harm that protests addressed, or does it 'throw out the baby with the bathwater'?

i don't know the answer. It may be that the harm from protests (delays, costs, etc) outweighs the occasional second-best product or service. After all, the commercial world survives without protests. But I think that the proposed reform needs to make that case. Chesterton would ask you - why was the protest system created in the first place.

By the way, the heavy metal band Iron Maiden used some Chesterton lines in one of their songs. Best endorsement I know of!

Fara Fasat said:

Yes reform is needed, but is the answer to eliminate protests completely? What about the harm to the government? If fraud or corruption, or even just a poorly-conducted acquisition, leads to the government not getting the best product or the best services, how does "pay their costs" remedy that? Sure the harmed bidder gets compensated, but the government is stuck with a second-best, or worse, product or service. Should the government have to accept inferior products or services because we took an ax to the protest system.

I’m not following you.  Are you saying a protest helps ensure the government gets the best product or service?  If so, “the government is stuck with a second-best, or worse, product or service?”  I don’t agree with this logic saying “Should the government have to accept inferior products or services because we took an ax to the protest system?”

Not really. You're extending what I said. There could be many reasons for allowing protests. That is just one, and it certainly would not apply in all cases. In many cases a protest is sustained because the process was flawed or rules were violated, and the same contractor wins again in the recompetition. Other grounds for protest are based on maintaining the integrity and fairness of the system, and probably don't result in a better product being selected. But in a case where fraud or corruption leads to the selection of an inferior product, then yes, eliminating protests leaves the government stuck with that inferior product.

I'm saying that you have to understand the reasons for having protests in the first place. Somebody thought there was a harm to be addressed, and somebody created the protest system to address them. Were they wrong? Any reform must make the case that notwithstanding the harms, we are better off without the protests.

@Fara Fasat  Thanks for clarifying and I now understand your argument.  But I’m not extending what you said originally.  If fact this is what your post concluded with

Quote

It may be that the harm from protests (delays, costs, etc) outweighs the occasional second-best product or service. After all, the commercial world survives without protests.

You're right, I should have been more specific that I was only referring to the one type of harm. There are others, and I do agree that we don't need the protest system to remedy those. For example, if there is a process mistake by the government (and there are many protests sustained on that basis), Vern's proposal is appropriate. Probably for most other protest grounds as well. My reservation is for acquisitions where the government gets less than it wanted. How do you remedy those ? That's one type of harm that is not remedied by just paying the costs of the losing bidder.

Fara Fasat said:

But in a case where fraud or corruption leads to the selection of an inferior product, then yes, eliminating protests leaves the government stuck with that inferior product.

Why couldn't the Government suspend or T for C and re-evaluate?

On 2/29/2024 at 4:54 PM, Fara Fasat said:

Yes reform is needed, but is the answer to eliminate protests completely? What about the harm to the government? If fraud or corruption, or even just a poorly-conducted acquisition, leads to the government not getting the best product or the best services, how does "pay their costs" remedy that? Sure the harmed bidder gets compensated, but the government is stuck with a second-best, or worse, product or service. Should the government have to accept inferior products or services because we took an ax to the protest system?

Emphasis added.

Get real about your work world.

There is no evidence whatsoever that the current methods of contractor selection and contract award other than sealed bidding produce "best value." The average SSA could not give a coherent 15-minute presentation about concepts like value and risk. They could not provide a coherent explanation of the concept of evaluation factor. In most services acquisitions and many acquisitions of supplies the supposed "best value" determination is generally based on tradeoffs grounded on essay-writing  contests ("describe your proposed approach" " demonstrate your understanding of the requirement")—"proposals" that are even now being produced in part with technology like ChatGPT—and on half-baked analyses of "key personnel" and "past performance" based on scant information.

Conclusions about "value" are usually described in vague adjectival terms such as: Outstanding, Good, Acceptable, Marginal, or Unacceptable. See W. Edwards Deming's 1975 essay, "The Logic of Evaluation":

Quote

Any adjective that is to be used in evaluation requires an operational definition, which can be stated only in statistical terms. Unemployed, improved, good, acceptable, safe, round, reliable, accurate, dangerous, polluted, flammable, on-time performance (as of an airline or train) have no meaning except in terms of a stated statistical degree of uniformity and reproducibility of a test method or criterion.

What on earth does Good mean when applied to different proposals of various content? What is the margin of difference between Good and Acceptable?

Evaluation documentation is often poor and is often destroyed. At the end of performance no one compares what was described in the winning proposal to what was actually received and writes a comparative assessment. In many agencies the winning proposal is not seen again after the source selection.

And we have known for decades, since before WWII, that proposals are often based on desperate imagination and bull----. That knowledge is well documented.

And lastly, where is the evidence that protests have made acquisition better in terms of the value actually received? On what facts (not suppositions) do you base that notion? What they mainly do is ensure compliance with administrative laws and regulations.

Vern Edwards said:

And we have known for decades, since before WWII, that proposals are often based on desperate imagination and bull----. That knowledge is well documented.

I’ve taken a couple training sessions on proposal writing as well as attended many seminars on the subject.  One common point stressed throughout is address your proposal to what you discovered the agency really wants and not what the solicitation literally says.  The winner is the offeror that clicks off all the boxes with their words.  That doesn’t mean the agency got something better - it’s just the offeror that chose the right words won

I am often discouraged by how infrequently "professionals" in our business question underlying assumptions, theories, and doctrines. The OJT training they most receive does not encourage them to engage in self-interrogation, to inquire beyond official sources of information, to think deeply, and to ask challenging questions.

The motto of the acquisition reformer is: Question all assumptions, conclusions, explanations, doctrines, policies, rules, factual assertions, processes, and procedures.

The questions you must ask yourself everyday are: What do I really know about that?

One thing that really bothers me is there’s no individual accountability for contract award decisions.  I wonder how many sustained protests occur because no single individual questioned things?  It seems like everyone involved - CS/COs, PMs, technical specialists, technical evaluators, lawyers, reviewers including contract review boards, and others, just things slip by.  instead of critically examining items and highlighting problems, too often issues aren’t brought up.  

If errors occur and especially sustained protests happen, there’s nobody individually responsible.  When I started out as an intern decades ago, the contracting officer had personal accountability.  There were COs that had warrants removed for not taking prudent actions.  In some instances, they lost a grade because their job duties were classified at a lower level without a warrant.   Now blame is so diffused, accountability doesn’t exist.

formerfed said:

One thing that really bothers me is there’s no individual accountability for contract award decisions.

See FARR 15.303. By the book, agency heads are responsible. When they delegate SSA to someone else, that person is responsible.

Maybe what you mean is that no one is held responsible. No one is reprimanded or punished for process mismanagement when something goes wrong. Avoiding responsibility for that for which you are responsible is a very old, very human thing. And superiors are reluctant to hold anyone responsible because they would be responsible for that person.

On 3/2/2024 at 7:57 AM, Vern Edwards said:

There is no evidence whatsoever that the current methods of contractor selection and contract award other than sealed bidding produce "best value."

Please note that I didn't assert that without protests the government would be getting less than best value. I said that if that were the case, the cost of eliminating protests should be balanced against it. You have determined that there is no evidence the government was stuck with second-best goods, so eliminating protests outweighs it.

In other words you have considered the reasons for the fence, determined that they don't justify the fence, and recommend tearing it down. Chesterton would approve.

Fara Fasat said:

n other words you have considered the reasons for the fence, determined that they don't justify the fence, and recommend tearing it down.

Actually, I say that the fence is excessively costly to maintain and does more harm than good.

On 3/2/2024 at 9:57 AM, Vern Edwards said:

Conclusions about "value" are usually described in vague adjectival terms such as: Outstanding, Good, Acceptable, Marginal, or Unacceptable. See W. Edwards Deming's 1975 essay, "The Logic of Evaluation":

What on earth does Good mean when applied to different proposals of various content? What is the margin of difference between Good and Acceptable?

I cannot describe how frustrated engineers get on my SEBs when we have to make decisions based on these wholly-qualitative terms. It takes months and months of writing and re-writing to ensure all the analysis is consistent. The implementation varies from SEB to SEB. It's easily protestable, because the offerors have a much different perspective about what they wrote down. At the same time, it's difficult to win those protests because judges defer to SEBs on those qualitative assessments as long as they are consistent and followed the written RFP. Thanks for the essay link, btw. Hadn't read that one yet. 

On 3/2/2024 at 9:57 AM, Vern Edwards said:

Evaluation documentation is often poor and is often destroyed. At the end of performance no one compares what was described in the winning proposal to what was actually received and writes a comparative assessment. In many agencies the winning proposal is not seen again after the source selection.

And we have known for decades, since before WWII, that proposals are often based on desperate imagination and bull----. That knowledge is well documented.

This seems like the most actionable part of the dialogue. This could easily be a part of an integrated project team as they start market research and acquisition planning. Even better would be collecting this data throughout the contract. That would be true continuous improvement. Vern et al - It would be helpful for wifcon to facilitate sharing knowledge and tools to help professionals establish these initiatives within their agencies. Unfortunately for senior managers to sign on, something would either have to be very well developed already. My group likely has the capacity to take something like this on in the coming years. We have the centralized data, expertise, and willingness to try. 

That isn't the main focus of this discussion, but it's the one we can affect at the deckplate level. Everything else is for policy wonks, hopefully supported by professionals through data calls and surveys.

Me_BOX_Me said:

This seems like the most actionable part of the dialogue. This could easily be a part of an integrated project team as they start market research and acquisition planning. Even better would be collecting this data throughout the contract. That would be true continuous improvement. Vern et al - It would be helpful for wifcon to facilitate sharing knowledge and tools to help professionals establish these initiatives within their agencies. Unfortunately for senior managers to sign on, something would either have to be very well developed already. My group likely has the capacity to take something like this on in the coming years. We have the centralized data, expertise, and willingness to try.

What exactly are you requesting? Guidance on writing better evaluations?

The KO should send the technical portions of the winning proposal applicable to contract performance to the contract admin office/team along with the consensus evaluation minus any ratings.

This is for construction**, design-build construction** and certain service contracts.

In addition, we identified any proposed betterments which exceeded the solicitation requirements and which were accepted and incorporated at award.**

—————————————————

Footnotes:

**We normally incorporate applicable portions of the technical proposal into the contract award for construction and design-build contracts. It usually corresponds to proposed key personnel, specific proposed material or equipment, building systems etc. for construction. For D-B, it also includes proposed design features.

There was an order of precedence clause. Not the FAR Order of Precedence clause, which is only applicable to and appropriate for the UCF format.

The Army Corps of Engineers uses the Construction Specification Institute, CSI format for construction and design-build construction contracts..

The CSI format is more suitable for Federal construction and design-build construction contracting than the UCF.

The UCF is suitable for service and supply contracting.

joel hoffman said:

The UCF is suitable for service and supply contracting.

Other than commercial product or service.

C Culham said:

Other than commercial product or service.

Agreed.

Don Mansfield said:

What exactly are you requesting? Guidance on writing better evaluations?

No. I was referring to this part: "At the end of performance no one compares what was described in the winning proposal to what was actually received and writes a comparative assessment." 

Just saying that what Vern has proposed hasn't been attempted, certainly not at scale. So socializing what that comparative assessment might look like would be helpful to people who are interested in improving outcomes or reform similar to what Vern suggests. 

None of what I quoted talked about how to write better evaluations, it was about what we do with those documents post-award, if anything.

Me_BOX_Me said:

No. I was referring to this part: "At the end of performance no one compares what was described in the winning proposal to what was actually received and writes a comparative assessment."

There are situations where performance evolved into something different than what the government envisioned and what the contractor proposed.  And it was mutually beneficial as both parties gained insight and experience.

Me_BOX_Me said:

No. I was referring to this part: "At the end of performance no one compares what was described in the winning proposal to what was actually received and writes a comparative assessment." 

Just saying that what Vern has proposed hasn't been attempted, certainly not at scale. So socializing what that comparative assessment might look like would be helpful to people who are interested in improving outcomes or reform similar to what Vern suggests. 

None of what I quoted talked about how to write better evaluations, it was about what we do with those documents post-award, if anything.

I think there is a comparison between what was promised in the contract and what was delivered. That's the purpose of a CPAR. 

I think what Vern is referring to is the kind of BS you find in technical proposals (e.g., technical approach) that tends to weigh heavily, probably too heavily, in source selection decisions. If we were to compare that information to actual results, I think we would find two things. First, there is not much correlation between a proposed approach and the actual one used. Second, it doesn't matter that a contractor didn't use their proposed approach during contract performance. Contract performance depends more on the contractor's ability to adapt to changing circumstances than their adherence to a preconceived approach based on speculation of what the future will be. 

Hopefully, we would draw the conclusion that evaluating technical approaches is a waste of time.

Don Mansfield said:

I think there is a comparison between what was promised in the contract and what was delivered. That's the purpose of a CPAR. 

I think what Vern is referring to is the kind of BS you find in technical proposals (e.g., technical approach) that tends to weigh heavily, probably too heavily, in source selection decisions. If we were to compare that information to actual results, I think we would find two things. First, there is not much correlation between a proposed approach and the actual one used. Second, it doesn't matter that a contractor didn't use their proposed approach during contract performance. Contract performance depends more on the contractor's ability to adapt to changing circumstances than their adherence to a preconceived approach based on speculation of what the future will be. 

Hopefully, we would draw the conclusion that evaluating technical approaches is a waste of time.

That's the conclusion my agency arrived at 5 years ago. Now we either do 1) "management approaches" that are so high level they might as well not exist, 2) a basic technical approach to contract transition, or 3) what I did on my last SEB which was to only evaluate Key Personnel and Past Performance. 

It has worked very well for us so far and I try and strip out the technical/management approach on each SEB I run. Most of the contracts are follow-on contracts anyway so there's nothing groundbreaking the agency wants/needs. Besides all the BS horse and pony show.

Still. There is valuable data in those evaluations and we would do well to mine it for what we can. CPAR evaluators rarely know what was in the proposal. They barely know what's in the PWS, especially as it changes over time. 

Since you need evidence that technical and management approaches are not correlated with outcomes, you have to do the comparative assessment. Otherwise senior leaders and source selection officials will continue to lean on their biases and insist on using their "expertise" to evaluate technical approaches.

formerfed said:

There are situations where performance evolved into something different than what the government envisioned and what the contractor proposed.  And it was mutually beneficial as both parties gained insight and experience.

This is very true on multi-year or multiple-year contracts. Understanding how it evolved (and why) would inform the acquisition team as they craft either a follow-on or other multi-year/multiple-year contracts. Gotta do that retrospective, though.

Don Mansfield said:

Hopefully, we would draw the conclusion that evaluating technical approaches is a waste of time.

Years ago, there were some saying experience and past performance might be all that’s needed for many acquisitions.  One very convincing advocate felt past performance done the easy way - sending surveys to offeror references (or “friends of the offeror) and use of CPARS was mostly a waster of time.  He went on saying the contracting team needs to find instances of offeror performance and personally question those customers to get meaningful data.

Me_BOX_Me said:

That's the conclusion my agency arrived at 5 years ago. Now we either do 1) "management approaches" that are so high level they might as well not exist, 2) a basic technical approach to contract transition, or 3) what I did on my last SEB which was to only evaluate Key Personnel and Past Performance. 

It has worked very well for us so far and I try and strip out the technical/management approach on each SEB I run. Most of the contracts are follow-on contracts anyway so there's nothing groundbreaking the agency wants/needs. Besides all the BS horse and pony shows.

For some projects such as R&D or responding to a SOO type requirements statement, a technical approach or some description of the offerors way of addressing the need might be necessary if for nothing more than assessing feasibility.

For routine acquisitions, the Air Force has preferred using price and “past performance” as evaluation factors. The “past performance” incorporates recent, relevant experience as evaluation criteria.

formerfed said:

Years ago, there were some saying experience and past performance might be all that’s needed for many acquisitions.  One very convincing advocate felt past performance done the easy way - sending surveys to offeror references (or “friends of the offeror) and use of CPARS was mostly a waster of time.  He went on saying the contracting team needs to find instances of offeror performance and personally question those customers to get meaningful data.

I agree with the “very convincing advocate” that “the east way[s] of having the contractor contact references or the government sending the survey to references is mostly a waste of time” and ineffective. 

My preference was to use standardized forms for prime, key subs (and for design-build, the design firm’s) project experience and having them provide customer references. We reserved the right to contact and interview the references, using a standardized question format to verify the claimed experience and claimed past performance quality for those recent, relevant projects..

We also used CPARs as a reference and reserved the right to consider other sources, including personal knowledge of project experience and performance.

i hate requiring references to fill out and return the information especially when it was repetitive for multiple acquisitions.

I found the best information was gained by TELEPHONICALLY INTERVIEWING the references. Never had any protests concerning such reference INTERVIEWS.

We kept the written record of interviews for future project SS references where necessary and applicable.

Of course, using documented, TELEPHONIC, ORAL COMMUNICATIONS isn’t “the easy way”…

On 3/6/2024 at 3:56 AM, joel hoffman said:

The UCF is suitable for service and supply contracting.

The UCF is one of the best things in the FAR. It was in the ASPR and FPR before FAR. It is an excellent way to organize the content of a solicitation and contract.

On 3/6/2024 at 5:15 AM, C Culham said:

Other than commercial product or service.

FAR 12.303 prescribes a format to be used "to the maximum extent practicable," but its use is not strictly mandatory, and some agencies now use the UCF to organize commercial item RFPs and contracts.

I recommend use of the UCF for large commercial item RFPs and contracts, because it works. Otherwise, RFPS for commercial items are sometimes badly organized, even chaotic, because contract specialists receive next to no training about organizing and writing RFPs and contracts, and important task.

Vern Edwards said:

The UCF is one of the best things in the FAR. It was in the ASPR and FPR before FAR. It is an excellent way to organize the content of a solicitation and contract.

Agreed.  My recollection is that in the move its use was implied to be imperative to provide ease for contractors in viewing solicitations/contracts across all agencies so stuff was essentially in the same place.

Vern Edwards said:

FAR 12.303 prescribes a format to be used "to the maximum extent practicable," but its use is not strictly mandatory, and some agencies now use the UCF to organize commercial item RFPs and contracts.

And the format of FAR 12.303 is built upon (my terminology) in FAR clasue 52.212-4 paragraph (s) Order of Precedence.

Vern Edwards said:

I recommend use of the UCF for large commercial item RFPs and contracts, because it works. Otherwise, RFPS for commercial items are sometimes badly organized, even chaotic, because contract specialists receive next to no training about organizing and writing RFPs and contracts, and important task.

Even the small ones by my experience attempt UCF but  are organized poorly and provide in some cases of conflicts that could not/cannot be solved by a simple application of paragraph (s) of 52.212-4.  Consistency is the key and agencies should consider a waiver to paragraph (s) that provides for use of full UCF at the  discreation of the CO. 

I never understood why FAR 12 departed from UCF for commercial product/item as in my experience there is no real uniform contract format in the commercial market place.  I guess I could be wrong but the commercial terms and conditions I have viewed suggest no consistency across the commercial market place.

Overall I have always thought the UCF was good as well but it seems the "to the maximum..." is read as an imperative rather than discreationary.

On 3/6/2024 at 1:03 PM, Me_BOX_Me said:

That's the conclusion my agency arrived at 5 years ago. Now we either do 1) "management approaches" that are so high level they might as well not exist, 2) a basic technical approach to contract transition, or 3) what I did on my last SEB which was to only evaluate Key Personnel and Past Performance.

The use of the word approach in RFP statements of evaluation factors and proposal preparation instructions is quite old. It probably dates back to the design competitions conducted by the Army and Navy under the Air Corps Act of 1926 and was carried forward in the use of negotiated procurements after passage of the Armed Services Procurement Act of 1947. It originally referred to aircraft design approach (two-engine, like the B-25, or four, like the B-17), but thanks to cut-and-paste practice it is now used in all sorts of procurements and means who knows what. "Proposed [technical or management] approach" is a very common evaluation factor and proposal preparation instruction term.

The concept of management approach was adopted in the early 1960's, because preliminary designs were not good predictors of performance. The emphasis shifted to contractor capability. See Peck & Scherer, The Weapons Acquisition Process: An Economic Analysis, pp, 361 - 385..

I just downloaded from SAM.gov the following instruction in a combined synopsis/solicitation for human resources support services, RFP W91CRB-24-R-0014:

Quote

Technical: (Technical proposals shall not exceed 15 pages)

Offerors shall provide sufficient information for the Government to determine the ability of the Offeror to perform the requirements of the RFP. The Offeror's proposal shall describe in detail its technical approach to performing the requirements of the Performance Work Statement (PWS) in meeting the following:

Note:  The Technical Proposal shall not include any cost or pricing data.

Technical Approach 

The offeror’s proposal shall demonstrate a clear, concise, comprehensive understanding and methodology for the following specific tasks on part 5 of the PWS:

1. Development of a Plan of Action and Milestone (POA&M)
2. Management of Civilian and Army Personnel
3. Leadership Development
4. Management of HQDA workers compensation Program
5. Management of Service Contract Reporting

The PWS is 32 pages long (no table of contents). Offerors get 15 pages in which to address five topics, so that's an average of three pages per topic. The second topic is PWS Task 5.2.2, entitled, "Civilian and Military Personnel Management." It is takes up about three quarters of a page and consists of six subtasks. So the space available is about 1/2 page per subtask. Subtask 5.2.2.3 says:

Quote

Review and monitor HQDA organization Request for Personnel Action (RPA) as required using AutoNOA. This task includes validating RPAs against approved organization structures and in compliance with HQDA civilian strength management policy; advising the Director, Human Resources Management Directorate (HRMD), or HRMD Government personnel on appropriate action; and monitoring RPAs to ensure they are processed as approved. a) Provide monthly report on the RPAs reviewed when requested by the HRMD Director. (CDRL A010 – Monthly Report).

What are the offerors expected to say about that in 1/2 of a page?

Can you all see how utterly stupid this is?

Whose fault is this kind of thing?

THE CONTRACTING OFFICERS'! THEY ARE SUPPOSED TO BE THE "BUSINESS ADVISORS," THE SOURCE SELECTION EXPERTS. THEY ARE SUPPOSED TO BE THINKERS!

What does approach mean? What do the evaluators want to know? When you ask someone to describe their "approach" to some undertaking, what do you want them to describe? What specific questions do you want them to answer?

According to definition of approach in the Oxford English Dictionary (the OED--the 20-volume dictionary, not some "college" dictionary), definition 5b, approach means:

Quote

figurative. A way of considering or handling something, esp. a problem.

Most contract specialists will say, "We want them to describe how they plan to do the job?"

What does "how" mean? According to the OED it means:

Quote

In what way or manner? By what means?

Approach is not specific. Asking "how" is not being specific. What, specifically, do you want to know? What specific information will affect your selection of an offeror and acceptance of its offer?

 So the next time the "technical people" write a cut-and-paste proposal preparation instruction, sit down with them and say:

"What questions do you want answered?"

And then, instead of writing a "proposal preparation instruction", write a questionnaire. If you want page limits, write an appropriate limit for each question.

Think!

Just got my first protest, from someone not even in line for award. 

But that still means a CICA stay and hundreds of hours charged by lawyers and others on a protest that is going to ultimately fail.  The only one who wins is the pre-award incumbent (and the protestor's attorneys of course).

How about mediation as the first avenue of a protest? I realize GAO is a pseudo-mediator but they are still a bureaucratic government agency with all the attendant baggage and sclerotic timelines. 

Or, maybe a more formulaic ("hurdle") approach whereby protestors would have to demonstrate competitive prejudice, standing, etc., before they are even allowed to file a protest.

I do agree that the current system incentivizes protests and is wasteful and expensive.  It seems we are more focused on avoiding protests than providing sound business advice.

C Culham said:

I never understood why FAR 12 departed from UCF for commercial product/item as in my experience there is no real uniform contract format in the commercial market place.  I guess I could be wrong but the commercial terms and conditions I have viewed suggest no consistency across the commercial market place.

The idea was to streamline the solicitation process by enabling combined synopsis/solicitation. The UCF did not lend itself to that process. However, the original concept of combined sysnopsis/solicitation has long been laid by the wayside.

REA'n Maker said:

How about mediation as the first avenue of a protest?

It takes time, and a protest afterward is still possible, even likely in hotly contests procurements.

REA'n Maker said:

I do agree that the current system incentivizes protests and is wasteful and expensive.

I don't know that it "incentivizes" protests. The biggest problem is time and cost, both the cost of the protest process and the costs of delayed contract awards. Protests hamper agencies' ability to get what they need to do their job for the American people. The benefits of the protest system are largely theoretical, rather than established in fact.

Vern Edwards said:

I don't know that it "incentivizes" protests.

Maybe I should limit that comment to the CICA stay, which is a huge incentive to file a protest regardless of merit.  The incumbent can make way more money continuing to bill for a month or two on a $100M contract than they will ever spend on a protest.  All they have to do is ask and viola, CICA stay, and the money keeps rolling in!

(I have to say; I got a good laugh out of Vern's post regarding approach. So true.  Everybody uses it as a key term in solicitations and evaluations, but the implication in common English is that to approach something is a precursor to actually doing something.  "OK, now that you've approached it, what do you plan to do when you actually get there?" 🤔😄🤣)