Improving agency level protests

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Contractors unhappy with an award decision can protest directly to the agency that made the award. But more often they skip the agency level protest, and go either to the Government Accountability office or the Court of Federal Claims. That’s usually because they figure, what’s the use of protesting to the contracting officer who made the decision. To discuss some proposed changes to the agency level protest process, Berenzweig Leonard partner Terry O’Connor joined Federal Drive with Tom Temin.

Interview transcript:

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Tom Temin: Terry, good to have you back.

Terry O’Connor: Nice to be here, Tom. Thanks.

Tom Temin: So you have pointed out some of the problems that would drive people away from bothering with agency level protests. Briefly, what are the big issues with it?

Terry O’Connor: One of the big issues is that, as you said, you’re asking in an agency level protest, you’re asking the judge to be a judge in their own matter, right. Because the contracting officer issues an award, you’re going back to the contracting officer asking, did you really steal that contract from me? Well what answer are you going to get? There is a real good purpose for pre-award protests when there’s something wrong with the solicitation. And our experience has been that the contract officer almost happy to realize that there’s something wrong in their solicitation and to clean it up. So those are the pre-award before the offers go in if there’s an ambiguity in the solicitation or wrong NAICS code or something like that. That’s a very good use and very acceptable use of a agency level protest. But once the award is made, going to the agency, even going a step higher, like GSA, for example, you can go higher to an agency official — there’s still that conflict of interest appearance.

Tom Temin: That’s right. And we should point out that protesters lose most of the cases.

Terry O’Connor: They do, yes. Especially in the post award ones they do. I mean, I feel sorry for the agencies. I was a government lawyer for 15 years so I understand the workload that the agency personnel have, but the credibility of the agency level protests is very low. And I think there’s efforts afoot to try and get more credibility to that process. Make agencies want to use it more.

Tom Temin: Sure. And if they were more willing to use it agencies and contractors, it would probably speed things up.

Terry O’Connor: Yes, yeah, dramatically.

Tom Temin: Relieve some of the clogging that takes place at the courts and the GAO.

Terry O’Connor: Yeah. I mean, look at the JEDI protests. Something as valuable and as important as that is running into very legitimate, I would think, from what I’ve read, very legitimate objection, but we haven’t gotten the system.

Tom Temin: Well, that case is taken on a sort of grander. This ability to drag on unfortaunetly. But getting back to the agency level protests, there are some efforts now to maybe reform that through a petition to the Administrative Conference of the United States. Let’s talk about some of those.

Terry O’Connor: Yeah, the Administrative Conference of the US had Professor Chris Yukins from GW do a study, and it’s a wonderful study because he interviewed not just agency people, but also practitioners like me. I didn’t get interviewed, but I mean practitioners in the business to see if there are ways of improving the whole process. It’s a wonderful report, because it really deals with all the issues and it makes some proposals of how the whole process can get better. Basically, it’s got to be more transparent. We have no idea, the business community has no idea how often contractors win at an agency level. Our suspicion is we don’t win at all, but it would be nice to know if there’s some facts and figures out there.

Tom Temin: So that would be one of the proposals is to make the process subject to reporting and regular statistics being made known to all parties.

Terry O’Connor: Yeah. And it’s simple transparency. I mean, European countries are doing these kinds of things, they’re letting this information get out. Another good approach in the report is what is the jurisdiction of an agency level protest. For example, there’s some things that GAO in its own regulations says, we don’t want to handle that except under very usual circumstances. Because there is no jurisdiction in FAR or statute anywhere, the jurisdiction can be very, very wide open. In fact, there’s some arguments that some issues that you would like to raise in a protest, you can’t make at the GAO, go to the agency — see what the agency says.

Tom Temin: One of the other proposals would be to designate some official, almost like an inspector general type of thing, separate from the contracting process. That would seem to have a lot of promise.

Terry O’Connor: Yes, get somebody was credibility. Somebody who doesn’t eat lunch in the cafeteria with the contracting officer. One interesting alternative is to go to another agency, find them completely out of shop, but that’s awfully difficult. The agencies are just I think overworked from my experience. You’re giving somebody more work and not give them any more money. You’re getting what you pay for.

Tom Temin: So this would be the role of an agency protest official, someone that’s whose job it would be.

Terry O’Connor: Yeah. For example, I think GSA has one, I’ve been in that arena. So there are other agencies that have them. But really for credibility, it’s a little better when there’s somebody above and outside of the contracting officer, but they’re still part of the same agency — and the conflict of interest appearance is always there.

Tom Temin: And we mentioned JEDI in passing and kind of joked a little bit about it, but it’s going to be one of the law-book, textbook cases I think when this is all said and done. And there, they have been to court, they’ve been to the agency, to the Defense Department. I wonder if any of this would have fixed things early on, had this kind of process been in place.

Terry O’Connor: Well, it could have been apparently there were actually some agency level protests with JEDI but of course, we haven’t heard about that. I think maybe the JEDI is the poor example because it’s such a huge procurement that, let’s face it the way the world works, anybody who lost was going to be protesting, and that’s just the way the business is, and okay we got to deal with that. But the small businesses that spend tons of money on doing a proposal and lose, they want to be treated fairly, or at least be shown that they have been treated fairl — and that’s the way you get people to come back to you.

Tom Temin: If there was a better and more efficacious agency level protest process, do you think that task order contracts could be folded into that so that they would be protectable?

Terry O’Connor: Yeah, I think so. Because right now, it’s basically GAO handles the task order protests at varying levels, depending on DoD or civilian. That’s in fact, in Professor Yukins report, there’s some GAO decisions where eight, nine years ago. That’s exactly what happened before the dollar limits were imposed but yes, it could be, especially in task orders. That’s where the action is nowadays.

Tom Temin: What’s been your personal experience in agency level protests with clients? Have you won any of them?

Terry O’Connor: Oh, yeah, we’ve won a couple pre-award, but we have not won any post-award. And we tell our clients, you don’t want to waste your time going to the agency, it would be could be cheaper, but the big problem is, and this is going to be a sticking point. If you protest to an agency after award, you get the automatic stay at the agency level. But you get a bad decision from the agency and you want to go to GAO, you don’t get the automatic stay typically. There’s a real tight timetable and typically agency level protests, you do one of those you’re going to miss the GAO automatic stay. So that’s been the real deciding issue for our clients. You want to stay or don’t you, well then don’t go to the agency because you might have to go to GAO and then you don’t have to ability to get the automatic stay automatically.

Tom Temin: So it’s almost a roulette quality to the whole thing.

Terry O’Connor: Oh, yeah

Tom Temin: Terry O’Connor is the director of government contracts at the law firm Berenzweig Leonard. Thanks so much.

Terry O’Connor: Thanks for having me Tom.