Who’s the Fairest of Them All: The Effects of Bid Protests on the Acquisition System Challenge
By: Kaitlyn Johnson
- Sean O’Keefe, Distinguished Senior Adviser at CSIS and University Professor at Syracuse University
- Dick Ginman, Former Director of Defense Procurement and Acquisition Policy
- Elliot Branch, Deputy Assistant Secretary of the Navy for Acquisition and Procurement
- Jay Cary, Partner at Covington & Burling LLP
- Andrew Hunter, Director of the Defense-Industrial Initiatives Group and Senior Fellow in the International Security Program, CSIS
On March 1st, the Defense-Industrial Initiatives Group hosted “Who’s the Fairest of them All: The Effects of Bid Protests on the Acquisition System” as part of the Next Generation Dialogue on Industry and Defense. Featuring current and past government, industry, and legal experts, this event explored the U.S. Government’s bid protest procedures and how this mechanism shapes process, practice, and behavior in the defense acquisition system. The event discussion revealed three takeaways on the state of the bid protest system in the U.S. today:
- It is essential for DoD to have a system that increases transparency in the bidding process.
- The bid protest system generally adds value to DoD’s acquisition system.
- The bid protest system is not without faults, and there is definite room for improvement.
It is essential for DoD to have a system that increases transparency in the bidding process.
Dr. John Hamre, CSIS President and CEO, opened the event. While acknowledging the obvious need for a bid protest system, he expressed concerns about the efficiency and fairness of the current system. Of course, DoD has come a long way from the days where there was an absence of an “explicit delineation for how protests could be logged” and any contracting protests gravitated toward politics instead of fair legal processing. Generally, the implementation of a designated track for unsuccessful offerors to protest acquisition decisions has improved the transparency and reliability of the system overall. However, Dr. Hamre and the event panelists believe that there is a definite need to fine-tune the current apparatus to improve this time-consuming process that can potentially be abused.
The bid protest system generally works and adds value to DoD’s acquisition system.
The panelists reached a broad consensus that the bid protest system generally works and adds value to DoD’s acquisition system. It has made contracting procedure cleaner and more precise on the front-end by forcing proposals to add specific details to requirements. This in turn helps to hold both DoD and industry accountable and ensures responsibility from both parties. By and large, the speakers agreed that the system gives DoD both the accountability and responsibility needed throughout the acquisition process.
The bid protest system is not without faults, and there is definite room for improvement.
While panelists agreed that the system generally works and adds value, the system is not without faults. One such fault is the time required to file and adjudicate bid protests. Although 100 days may be relatively quick for the legal community writ large, such delays could be detrimental to the warfighter. Additionally, Sean O’Keefe, former Secretary of the Navy and former CEO of Airbus, Inc., said that in his experience, almost all companies execute a concurrent effort during the bidding process to compile all documentation, just in case the company wants to protest a contract decision. This is both expensive and time-consuming for industry. In addition to this issue of time, the panelists nearly unanimously addressed the lack of communication between DoD and industry throughout the contract award and bid protest processes as a fault in the system.
Panelists suggested that key factors in fixing those faults would be supporting the acquisition workforce and increasing communication between DoD and industry. Support to the acquisition workforce will ensure the time needed to think through and clearly define the requirements of a program, which minimizes protests. One way DoD can increase communication with industry professionals is by mimicking the Air Force’s extended debriefing system, which provides the unsuccessful offerors the information needed to determine whether their proposal was evaluated correctly by the Air Force.
This panel discussion highlighted that the systemic effects of the bid process system, though evident, are not devastating the acquisition process. The Pentagon should certainly take a look at how to best improve this crucial process in its acquisition system, specifically addressing communication gaps, greater support for the acquisition workforce, and focus on refining the procurement process so companies have less reason to protest a DoD decision.
Rhys McCormick, a research assistant in the Defense-Industrial Initiatives Group, contributed to this article.