Agencies have much to learn from bid protest process

Tuesday - 6/19/2012, 10:45am EDT

Joseph Petrillo, federal contract attorney, Petrillo and Powell

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More than 2,000 bid protests are filed each year against the government, but are some contractors more trigger-happy than others?

In its series Inside the World's Biggest Buyer, Federal News Radio took a look at an exhaustive study of bid contracts by Steven Maser of Willamette University.

Joseph Petrillo, a federal contract attorney with Petrillo and Powell, agreed with Maser that bid protests help to keep the federal government honest. "They're practically the only mechanism we have for transparency and accountability in the contract award process," he said.

Petrillo told The Federal Drive with Tom Temin and Emily Kopp that he also agreed with Maser's contention that the 2,000 or so bid protests filed annually make up a small fraction of possible protestable contract actions — a million out of many millions.

"I'm a little surprised that he took that position, because in his actual report he seems to spend a lot of time studying those few protests and even goes so far as to say some protesters should be barred for filing multiple, unsuccessful protests," Petrillo said.

In his experience, Petrillo said contractors tended to take a strategic approach to whether they would file a protest bid or not.

"The protester tends to look at its relationship with the agency as a whole before doing a protest," Petrillo said. "One of the points that Prof. Maser makes that I fully agree with is the need for providing as much information as possible in a debriefing. Some agencies seem to think that if they say as little as possible in the debriefing they will not be giving companies grounds for protest. I think the opposite is true. If the losing company feels that they're being stonewalled, they suspect that there's something out there that's illegal and improper and that the agency is trying to hide it."

Maser and Petrillo also agreed that an agency providing the full amount of information in a debriefing is a good way for agencies to avoid protests from being filed.

Some companies might be reticent about filing a protest for fear of angering a customer, but Petrillo said if the protest is well-reasoned and it is withdrawn if the company discovers it has no grounds to make the protest, then the agency is less likely to hold a grudge. "I think most agencies can be professional and understand it," he said.

The statistic that stands out in Maser's report, according to Petrillo, is the General Services Administration's computation of a 45 percent effectiveness rate for protesters. "That means that in 45 percent of the protests that are filed, something is done to benefit the protester, whether it's a voluntary re- competition by the agency or the agency agreeing after alternate dispute resolution to take steps or the protest is sustained," he said.

Petrillo called that statistic "a warning sign."

"If 45 percent of the protests of procurements require some kind of remediation, then it seems to me that quality control isn't what it should be in this process," he said.

While agencies can learn from protests, Petrillo doesn't see an institutional mechanism present in most agencies for accomplishing that goal. "That's a shame," he said, "because it's avoiding an opportunity to improve the process."

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