ANALYSIS: Where true bid protest reform should start

The General Services Administration’s contribution to the ongoing Federal Acquisition Regulation reform effort may soon turn to the issue of bid protests.

GSA Senior Procurement Executive Jeff Koses floated the idea of making changes to Part 33 of the FAR in a LinkedIn post on Saturday.

Some of the proposed changes include establishing a minimum dollar amount, limiting the protest forum to either the Government Accountability Office or the U.S. Court of Federal Claims, but not both. A second proposal is no protests on “readily available” items, but definition was given for that.

Koses invited comments on what people like to see changed.

I do not disagree that the bid protest process needs changes, but it seems the Koses and many of the commenters are focused on restricting companies from access to filing a protest and not at getting at other matters that drive protests.

Koses and several commenters mention that incumbents who lose a recompete file a protest so they can continue to book revenue while the protest is adjudicated.

No one can say that does not happen, but the most common reason we are given for bid protests is the poor quality of the debriefings companies receive after losing a competition.

Companies protest in order to know why they lost.

Bid protests have been steadily dropping for almost a decade, according to GAO’s annual bid protest report. The Defense Department started using an enhanced debriefing process in 2018.

DOD's process includes more of a dialogue between the losing bidder and the customer. The process allows for questions and answers, then follow-ups. The losing bidder gets a clearer picture of why they lost.

Most civilian agencies do not follow the same process.

Reform number one should be to make sure the civilian and defense processes are the same, including the threshold for protesting task orders. DOD has a higher threshold. Make them the same.

Procurement teams also need more training on how to give debriefings and handling protests. As one commenter said: "Training, training, training."

Other ideas being floated include limiting the number of protests a company can file, similar to how some team sports limit the number challenges coaches have per game. Others suggest making companies pay the costs of a lost protest.

Those ideas are punitive.

Changes to the protest protests are needed, but I also believe that the push back on protests is misguided. Bid protests largely do not cause unnecessary delays because these challenges are extremely rare, given the volume of contracts and the number of protests filed.

Protests just don’t happen very often. USASpending.gov tracked 80,356 contract awards during federal fiscal year 2024.

GAO had 1,806 protests filed to it. That’s just 2.2% of all contracts.

Slightly more than half of GAO’s cases last year (52%) resulted in some benefit to the protesters. This is what GAO calls its “effectiveness rate.”

These are protests that either resulted in a corrective action by the agency, where it tried to fix a mistake in its award decision or evaluation process. The number also includes cases where GAO ruled in favor of the protesters.

This number indicates bid protests are catching genuine procurement errors instead of enabling frivolous challenges.

Place number one to start a reform is the cause of protests. Restricting access to the process does not address the primary reason companies protest.

Improving debriefings and more training for acquisition teams will make the whole process work better.