Protest Accountability: Mechanisms to Improve Performance

Protests are back in the news, although they never really left. I have been writing about this issue for some time (here and here), but the problem has only exploded in the last five years with the economic implosion, and now sequestration and budgeting Armageddon possible on the horizon.

A recent report from IBM’s Center for the Business of Government also highlight similar issues, but some of the recommendations made in the report are either not realistic or have no chance at implementation.

The current state of the acquisition workforce, and I am including the program office who are (or should) be evaluating a proposal, simply will not allow many of these recommendations to see the light of day.

The report should have focused on the only issues that need leadership support, which is to create confidence in the contract award decision, and to ensure industry understands the requirements, evaluation criteria, and why they did not win a contract.

The critical components that need attention:

Requirements

Poor requirements lead to contract failures, and protests of course. Garbage in equals garbage out, and that cannot be truer when it comes to procurements and subsequent contract award decisions.

Bundled, complex requirements, with hundreds of moving parts, combined with evaluation criteria that do not make sense, is a formula for almost automatic protests.

This is where performance-based contracting comes into play. Focusing on objectives and needed outcomes is where government should be, allowing industry to help solve problems and achieve the ever-illusive outcome: innovation. Instead, the current paradigm is stuck in a quagmire of government’s need to be overly-prescriptive, leading to confusion and poor requirements since industry has the edge in technological knowledge and capabilities. 

Keep requirements simple, use market research to communicate needs and allow industry input, including proper evaluation criteria.

Source Selection Management

Source selections are currently treated as a chore; an unwelcome ancillary duty by government personnel who do not have time for more taskings and who are under pressure from their respective leadership to perform other duties. Further, many senior leaders do not allow their personnel the flexibility needed to focus on a source selection, instead treating it with lesser importance than their subordinate’s day-to-day jobs.

The report makes some good recommendations in this area, but it is leadership that needs change to help them understand the importance of making sound business decisions through effective support of source selections.

I cannot count how many times I have supported a source selection in my consulting career where managers refuse to allow their personnel to focus on a source selection properly. The result is massive frustration and confusion, by both offerors and the evaluation team.

Another significant issue is training, as many program managers are simply not aware of proper evaluation processes, especially when it comes to documentation. Disturbingly, I have also seen many contract specialists also lack these fundamentals.

It is simply a fact that if a contract award decision is transparent and properly documented, this normally leads to confidence in a contract award decision by those in leadership charged to ultimately make the contract award decision, and hopefully industry.

A well-documented source selection, that has followed transparent and proper procedures, combined with effective debriefings, will go a long way to offsetting protest activity.

Transparency

This should include redacted source selection plans and documentation for the losing bidder, which incudes legal and peer review.

The trust issue, as the report mentions, is simply deteriorating to the point of frightening proportions. This should start as early in the acquisition process as possible, but again the fear-factor prevents government from collaborating with industry effectively, at the detriment of the requirement and the ultimate contract award.

Government personnel need to understand that if they do their jobs properly, protests should be sour grapes. It is the risk-aversion here that is a major issue.

Nonetheless, the current state of affairs when it comes to protests is only going to worsen unless accountability is brought into the fray.

Looking at the recent Government Accountability Office (GAO) report on protests, it is hard to not think that protests are out of control. Here is where I strongly agree with IBM’s report, as I have been an advocate of protest accountability for some time. How can one argue that some protests are not simply frivolous? I know of a company, an incumbent on a contract that lost a recompete, who admitted filing a frivolous protest to bilk the government for another three months of revenue while GAO made the decision. The basis for the protest bordered on absurd, but how often does that happen? More often than you think. It is a business decision no doubt, but only at the expense of the taxpayers and the mission.

Protests are disruptive, and firms need to be held accountable for reimbursing the government for losing protest after protest. Further, this is a demonstration of a bad actor, and should also be included in a firm’s past performance rating.

Conversely, firms should automatically be compensated for protests fees should they be upheld. It is a two-way street, and needs to be treated as such.

Protests are a fundamental right by a firm to correct a deficiency by the government. However, the data indicate that this right is being abused. Let’s bring this situation under control, and move forward.