Tuesday, March 13, 2012


We want to call to your attention an excellent paper written by professors at the Naval Postgraduate School, including a former colleague of mine, Max Kidalov.  Email bill@spriggslawgroup.com for a copy.  Extensive research has shown there are numerous strategies and practices currently being used to minimize the impact of bid protests on the acquisition process such as adhering to clear evaluation criteria, advanced acquisition planning, procedures to prevent OCI violations, providing quality debriefings, thorough market research and some use of ADR procedures.  However, the authors point out the barriers to effective resolution or avoidance of bid protests include, lack of fiscal disincentive for unjustified protests, poor acquisition planning, lack of a trained acquisition workforce, frivolous protest filings and lack of sanctions for filing them.

So the authors recommend 12 "areas for further research" which could well be translated as recommendations for reform.  We'll put these recommendations in our own words:
  1. Sanctions for filing frivolous protests should be limited to the Rule 11 sanctions currently enforced at the Court of Federal Claims but they should be extended to GAO as well.
  2. The authors suggest the current stay override standards should be "re-balanced" to better protect the interests of the federal agencies, the taxpayers and the troops.
  3. Agency level protests must be made trustworthy, transparent and truly effective.
  4. Agencies should make better use of ADR procedures.
  5. ADR should be the default dispute resolution and Congress should take the FAA ODRA's approach and replicate it for all federal agencies.
  6. Agencies should object to frivolous protests by moving to dismiss them.
  7. Agencies must provide quality mandatory debriefings to prevent protests.
  8. Agencies should not blindly follow GAO recommendations.
  9. CICA and GAO rules should require protesters to post bonds for the cost of interruptions from CICA stays.
  10. Better training is needed in ADR resolution of protests.
  11. Competition must be enhanced by breaking up large consolidated contracts into smaller contracts including multiple-award contracts.
  12. FAR should require written justification for not using ADR, not overriding a stay, and not seeking to dismiss frivolous protests.
There can be no serious debate that adhering to clearly defined evaluation factors is the most important item on this list.  The second most important point is the need for quality debriefings.  The expurgated source selection decision documents should be made public, in our opinion.  Finally, we support the mandatory use of mediation of any dispute.  Many courts absolutely require the attempt to mediate in all civil cases. 

We applaud the Naval Postgraduate School for its research and major contribution to our consideration of reforms to the bid protest system.  Our special thanks to our dear friend, Max.


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