Thursday, August 16, 2012

"I'M A FAN OF PROTESTS"

Our friend Alan Chvotkin, Executive Vice President of the Professional Services Council (PSC), was quoted in the Washington Post as saying, "I'm a fan of protests. I think that when used properly they do hold the government accountable for following the rules. That's a good thing because Lord knows the government has lots of opportunities to hold the contractor community accountable." Alan knows what he is talking about as anyone who follows his activities with PSC is well aware. And we agree with him wholeheartedly.

We've written often in these blog posts about the need for the rules and the fact that enforcement of them leads to an adversarial relationship between contractors and the government. We noticed just even the Aerospace Industries Association (AIA) acknowledges the "adversarial relationship" between industry and the government (see page 8 or the May 2012 edition of National Defense magazine). You may have heard us on the radio shows talking about why we have all the rules and how rules necessarily lead to claims and protests.

The real point here is that when the U.S. District Courts had bid protest jurisdiction (Congress took it away later), they rationalized getting involved by finding the plaintiff protesters were acting as "private attorneys general" enforcing the laws on behalf of the public. Indeed, if one protests only if the regulations have been violated -- which is the only justification for protesting in our opinion -- one actually is acting on behalf of the public, of us taxpayers. Contractors should file protests only in cases where there has been a violation of a regulation.  (We are not a fan of protests involving the contracting officer's discretion.)  That is, a mandatory requirement probably found in FAR Part 15 has been ignored, such as the requirement to follow the solicitation evaluation scheme.

But the point of the article in the Post is that protests are increasing dramatically because of the decline in government spending which has created fierce competition for fewer contract awards. The statistics certainly support that view. However, we find it appalling that frivolous protests still are being filed.

Yes, we too believe in protests, for "when used properly they do hold the government accountable for following the rules." They are an integral part of our procurement system and are required to help us citizens protect the integrity of that system.

bill@spriggsconsultingservices.com   www.spriggslawgroup.com

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