Bid protesting system helps agencies police themselves

Each year, contractors sue the government more than 2,000 times. It’s nothing personal, but bid protests are one way of keeping the federal procurement system honest.

“In general, the system serves a very good purpose of helping the government actually police itself,” said Steven Maser, a professor of public policy and administration at Willamette University.

As part of Federal News Radio’s week-long special report, Inside the World’s Biggest Buyer, Maser spoke to The Federal Drive with Tom Temin and Emily Kopp about an exhaustive study of bid protests he just published.

“One of the findings is that there should be improved and better and more transparent communication from government contracting agencies,” Maser said. “You find quite a range from agencies that are divulging the minimal amount they need to divulge to agencies who are extremely forthcoming in working with the business community. ”

Congress and the Government Accountability Office have been encouraging greater transparency in contracting. One way of doing that is giving the unsuccessful bidder the opportunity for a debriefing, in which the contracting agency describes how the bidder failed to secure the contract and how they could be more successful in the future.

“But, you get a wide variety of behaviors across agencies in those debriefings, although the Office of the Secretary of Defense has been taking steps to make that more uniform and encourage more disclosure,” Maser said. “What the agencies have some fear of is the more they disclose, the more a company or an attorney for that company will find a basis for a bid protest.”

According to Maser, if agencies were more open at the beginning of the bidding process, the likelihood of a bid protest could be reduced. “But again, there’s some risk that’s inherent in this that they’ll never be completely eliminated,” he said.

Maser’s study revealed that the number of bid protests was increasing, with 2,300 in fiscal year 2011.

That may seem like a lot, but that number should be put into perspective.

“When there’s a bid protest, most of them are not sustained,” Maser said. “Of those that are sustained, in the great majority of the cases, most of the vendors who originally won will still win.” He added that it was rare for the bid protester to be the winner in the end.

Still, Maser said the small number of bid protests that are won, provide good lessons for the acquisition community at large.

“All of the subsequent contracts fall within the shadow of those bid protest results that are sustained,” Maser said. “So, when GAO sustains a protest and everybody else pays attention and says ‘Oh, I’d better do it that way,’ that’s some of the good that comes out of the bid protest system.”

Source: Government Accountability Office

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