There will be fewer protests unless there are more

 


In case you missed it, I’ll tell you what happened at a recent symposium on bid
protests held by the American Bar Association’s Section on Public Contract Law last
month.


The participants were lawyers, agency officials, contractors, folks from the General
Accounting Office and even judges from the Court of Federal Claims. Like a bomber crew in
a World War II movie, every interest group was represented.


Despite their diversity, the participants generally agreed on one important
proposition: In the future, there will be fewer protests unless there are more.


This circular conclusion sounds less odd when you understand that recent developments
are pulling the process of adjudicating contract awards in two directions.


On the one hand, there are more untried and untested regulations in effect now than at
any time since the implementation of the Competition in Contracting Act.


Most notably, the Federal Acquisition Regulation has a complete rewrite of Part 15, the
rules for negotiated procurements, and a new subsection on past performance.


Until the rules become clearer, buyers and sellers will disagree over how they should
work. Such disputes could translate into more protests. The conference panelists had no
difficulty finding ambiguities, anomalies, enigmas and plain old loopholes in the new
rules, each a potential protest.


On the other hand, more and more purchasing is being done in ways that are not
obviously subject to protest. Multiple Award Schedule contracts and governmentwide
acquisition contract orders, together with credit card purchases, have ballooned.


Besides being difficult to protest, these buys share this: There is scarce or no
competition because they have little visibility.


Thus, the conundrum: Will uncertainty breed more protests, or will invisible buys
wither the process?


One factor that might tip the balance in favor of more activity is the shifting
attitude of GAO toward the more popular ordering vehicles. It has begun to dawn on the
office that these programs have grown to become a major evasion of the statutory
requirement for competition.


GAO, traditionally timid, hasn’t gone very far just yet. But at the conference, a
GAO bid protest attorney hinted that his office might act soon.


Careful to say that he was expressing his own views, he opined that his office would
give very careful consideration to allegations of abusive ordering. Discreetly, he invited
vendors that are losing business without having a chance to compete to file protests.


Among the high points of the program was an amusing portrait of former Office of
Federal Procurement Policy administrator Steven Kelman as a man obsessed with bid
protests.


An insider recounted how, as each newly-minted regulation was discussed, Kelman would
pose the same question: Is it protest-proof? He seemed to think the right verbal formula
could excuse any conduct. Evidently, the ex-administrator viewed protests as Captain Ahab
viewed Moby Dick.


Some of the opinions voiced simply reiterated what everyone already knew. For instance,
agencies keep trying to make their protest forums more appealing to potential protesters
than the alternative GAO and the courts.


These attempts at legal cosmetology haven’t been too successful, and agency
protests are still about as popular as Cinderella’s stepsisters.


The Federal Aviation Administration and the Postal Service attract protest business,
but Congress gave them a statutory monopoly.


Another nonsurprise was that, after almost a decade, GAO is still trying to figure out
when and how to conduct hearings. Government and private sector attorneys are unsatisfied.
Getting everyone angry is no mean feat.


The conference held a few surprises. Government participants were nearly unanimous in
stating that they would rather have clear guidance from a court than an open-ended remand.


Sometimes certainty is more valuable than fuzzy discretion.


What was surprising was the total lack of agency experience with ombudsmen, who are
supposed to make sure that every qualified holder of a task or delivery contract has a
chance to compete for orders. No one in the panel or audience, however, could relate a
single instance where this actually happened. A general question met with total silence.


So there you have it. Confused? You have lots of expert company.  


Joseph J. Petrillo is an attorney with the Washington law firm of Petrillo &
Powell, PLLC. E-mail him at jpetrillo@counsel.com.


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