Deflategate and federal procurement process

What can source selection officials and agencies learn from Judge Richard Berman’s decision in the “Deflategate” case between the NFL and the NFL Players Association? As I watched this story unfold I could not help but consider the parallels between this case and government contracting.

  • Source selections officials (in most cases the contracting officer) have absolute authority to make the award decision.
  • Clearly identify the process, how the decision will be determined, and what the outcomes will be for failing to meet the standards.
  • Fairness in the process is paramount to a successful outcome.
  • If an appeal is filed, whether it be through agency, the Government Accountability Office or through the Court of Federal Claims, the agency must ensure that due process is afforded to both sides.
Mike Sade, president of Sade Associates

In my experience within the federal procurement process the rules are well defined, the process is clear, and the avenues for appeal of a source selection decision are all in statute and regulation. Similar to the process in the NFL collective bargaining agreement.

What remains unclear is the fairness of discovery within the process.

What the NFL failed to do in the case against New England Patriots quarterback Tom Brady was clear to Berman. He did not question the commissioner’s authority. What was questioned was the fairness of the player’s ability to question or cross examine the “right” personnel, clearly knowing the potential penalty for failing to cooperate, and the failure to clearly support the finding. Often in government procurement this is what the debrief process should afford.

So what can a source selection official learn from this case?

First, a solicitation must clearly outline the requirements, proposal preparation instructions, and most importantly the source selection criteria. Then after proposals are submitted and evaluated an award decision is recommended. If there are serious questions about what a proposal includes there should be discussions.

Too often I have seen source selection decisions made where there are questions where the government might disqualify and really good proposal because they are in a hurry to get to an award instead of finding the best solution.

In the NFL case the commissioner relied solely on the Ted Wells report (i.e. the technical report in government procurement) without questioning what went into the report and how they came to the conclusion.

Second, I have often seen in the arbitration phase in the government appeal process which I would equate to the debriefing.
The government is too focused on defending the award decision and not listening. In the “Deflategate” case the NFL failed to ask the right questions and allow the player to address those issues.

In a government debriefing the government should understand a debriefing is an opportunity to identify the reasons for the award decision as well as learn what they might have missed in the process of reaching that decision by listening to a losing contractor’s position.

Finally, when both sides get so dug into their positions and don’t listen to each other it will lead to a legal action (i.e. protest). This is the worst outcome for both parties because it is costly in terms of personnel cost and legal fees. One of my favorite lines from the movie “Other People’s Money” is when Danny DiVito says “Our side has lawyers because their side has lawyers, but once you use them it gets all [messed] up.” This is not a slam on lawyers but it is the worst state of events when you have a mission to accomplish and distracting resources from accomplishing that mission to defending a decision which is detrimental to the agency mission.

So how does a source selection official avoid the pitfalls of “Deflategate”? Here are my suggestions to improve communications and avoid the pitfalls:

  • During market research understand the market, listen to industry to help define the requirements and outcomes, identify what the best source selection criteria should be, and how to rank those criteria.
  • During proposal evaluation ensure the technical panel clearly identifies strengths and weaknesses in a proposal and if a proposal has some promise to provide the best solution give the company the opportunity to address those deficiencies through discussions.
  • During a debriefing give a company a chance to clearly articulate why they felt they had a winning proposal. If the company identifies areas where the evaluation process missed something or was wrong – address how you will fix that mistake. If the company is wrong – educate them on how they can improve in the future.

My message is don’t fall in to the “Deflategate” syndrome by standing your ground without listening to others and admitting you made a mistake. It can only embarrass the agency and affect the mission. Nobody wins in this scenario.

Mike Sade is a former senior procurement executive at the Commerce Department, assistant commissioner in GSA’s Federal Acquisition Service and a director of acquisition support at the Homeland Security Department’s Customs and Border Protection directorate. He is now president of ( Sade Associates.

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