I am just throwing this out to see if anyone agrees with me......should Congress change the way bid protests are handled? For twenty some odd years I have felt that bid protests should be filed with the agency first....sort of like a CDA claim....where ,ordinarily, nothing proceeds until a KOs final decision. Many times a protest filed with GAO ,is valid and easily accommodated but for the fact that its sort of blindsiding the KO. I think that protestors should not be able to seek another forum,unless and until an adverse decision by the KO has been acquired. At least it will eliminate the need for an automatic agency report and should, if valid, speed up the procurement process. At any rate I think the KO should have the first bite of the apple before the issue winds up at GAO or the federal judiciary. Any opinions?

By Vern Edwards on Thursday, October 19, 2000 - 05:52 pm:

C Mercy:

Don't the current rules allow agencies to avoid the need to submit an agency report and a GAO decision by considering the protest themselves? See FAR 33.102(a).

An agency gets 30 days (20 days in the event that GAO chooses the express option) to submit an agency report to the GAO. If the agency moves quickly to consider the merits of the protest, and if it decides in favor of the protester, it can resolve the matter without waiting for the GAO and thus shortcircuit the process by rendering the protest moot. See FAR 33.102(b).

In effect, the only protests that need to go forward to the GAO are the ones that agencies have considered and denied.

If you changed the process, would you require agencies to delay contract award pending resolution of the protest and, in the event of an adverse agency decision, until denial of an appeal?

By Stan Livingstone on Friday, October 20, 2000 - 09:34 am:

Personally, I would like to see agencies handle debriefings better and provide enough information to essentailly eliminate protests. If the CO (or KO for you DoD types) makes the source selection rational an "open book", companies will fully understand the process. They may not be happy with the outcome, but at least they should understand the logic. If they find fault, the CO should move quickly to correct it. A good many protests occur simply because the protestor doesn't know what happened and has no recourse to find the facts.

By Eric Ottinger on Friday, October 20, 2000 - 10:39 am:

Amen, Stan,

I attended a course at Ft. Lee back before the Part 15 Rewrite. One of the women in the class worked for a Navy buying office in Florida. On the, “If it isn’t illegal, why not.” theory, her supervisor had initiated one-on-one meetings with potential offerors.

There were three lessons learned. (1) It speeded up the process. (2) It improved the contract. And, (3) there were no protests.

Protests are down because the new debriefing rules and the Part 15 Rewrite have made the process more open and transparent.

Certainly, every effort should be made to make sure there is a good communication between the PCO and the disappointed offeror before the disappointed offeror goes to the GAO.

On the other hand, I wouldn’t reverse the selection decision unless something really ugly comes out of the woodwork. I am opposed on principle to any policy which suggests that the PCO doesn’t have the final word speaking for the agency. Specifically, I don’t like policies which invite higher management to routinely step in and help the PCO resolve controversies. The PCO should have the final word unless there is some really compelling need to elevate.

Eric

By Rita Sampson on Friday, October 20, 2000 - 11:10 am:

My experience with GAO protests is akin to what Vern talked about. Sometime during the 30 days we get to respond with the agency report we can often solve the problem, fix what's broken, and the protestor withdraws the protest. If memory serves, we have been able to get a fair number of our GAO protests withdrawn this way. Requiring contractors to always go to the CO first would probably just mean two protests instead of one. I think most disgruntled contractors will not be satisfied with the CO's decision unless it is in their favor, thus the protest would end up at GAO anyway.

By C MERCY on Tuesday, October 31, 2000 - 10:41 am:

Rite

You are making my point. If you are successful at the GAO level, why wouldn't you be equally successful at the KO level? By requiring a KO protest first we would eliminate the agency report which is always required when a protest is filed at GAO.Of course it is possible that a contractor may file anyway but I suspect that that would be a rare occurrence. And even if he did at least our ducks would be lined up already.

By Eric Ottinger on Tuesday, October 31, 2000 - 11:43 am:

C

I think there is usually an element of emotional irrationality in protests. If the disappointed offeror is so hard over that you can’t get through to him/her in the debriefing process I doubt that a few extra weeks will change the attitude.

And, there is a need to resolve the uncertainty and get on with the new contract. If the agency can’t settle the issue in the debriefing process, I think it is probably best to get on with the protest process.

Keep in mind that there is frequently a substantial number of people who are either going to keep or lose their jobs depending on the outcome of the protest. They deserve a prompt resolution.

Eric