Preventing Protests

By Jack Zeigler, C.P.M.
Policy and Protest Manager, State of Washington

This article is the first in a series of three on the topic of protest management. Part 1 focuses on recommendations to prevent a protest from occurring. When a protest is filed, it impacts many people–the buyer, the awardee, the customer, the buyer’s boss, the agency’s counsel, the governing body, and the list goes on. Even the threat of a protest can get an agency’s attention. Not all protests can be prevented, but certain practices can help to avoid them.

What is a protest? In its simplest terms, a protest is someone saying, “I should have gotten the award!” A protest by definition is a written objection or an appeal to a higher authority by a bidder to one or more elements of the procurement process or to a bid submitted to another bidder. Bid protests are:

• Administrative in nature;
• An alternative to litigation;
• The most common appeal mechanism in public procurement; and
• A mechanism to ensure checks and balances.

Most procurement professionals may not experience the level of protests that can happen in a high-dollar, high-volume public purchasing environment. Typically, only purchasing organizations for states or large cities will see more than one or two protests a year. The State of Washington Office of State Procurement receives about 20 formal protests a year. An analysis of protest activity over the last three years indicates that protests are on the rise. The odds are that, at some point in his or her purchasing career, a procurement official will have a protest.

What can entities do to avoid a protest? Public agencies should first pursue an open and objective process that serves to maximize competition. Most of the same things that they do to promote open and effective competition also serve a dual purpose in helping to prevent protests from being filed against their bids.

The following list provides recommendations for avoiding protests. This list evolved from “lessons learned” from the 70-plus protest responses coordinated to date for the State of Washington, Office of State Procurement. Every item in this list can be traced directly back to a specific protest.

• “Say what you are going to do and then do it.” Most protests happen when the entity deviates from the written requirements of the bid document.
• Publish written policies and procedures and offer supplier training.
• Be in charge. This means that the agency is accountable for the bid document and the award decision. Entities often rely on experts for technical assistance and input from end users in the evaluation process, but officials should remember that such recommendations are purely advisory. While the award may be based on recommendations, the final decision belongs to the purchasing lead. More specifically, the purchasing official signing the award accepts accountability for the experts’ recommendations.
• Develop specifications and requirements in an
  objective manner. Do not copy verbatim from a brochure or literature. Write only those specifications that are necessary to ensure that the program’s needs are met. Specifications not only should reflect those true needs but also should be stated in a manner that will promote open and effective competition. The agency should strive to eliminate unnecessary, costly, or restrictive specifications and requirements.
• Ensure that the bid document fully defines responsibilities of both parties. This accomplishes two things. First, bidders cannot protest that the requirements are unclear and ambiguous. Second, if bidders are able to fully identify the costs associated with a given project, they will be more willing to provide a better bid package. If bidders are uncertain as to future costs, they probably will add a cushion to their bid price to protect against risk of the unknown.
• Before releasing the solicitation document, get a third-party review for accuracy and to identify risk. After working on a bid document for a long time, it is tough to see the forest for the trees. A solicitation may be at risk for protest due to a variety of reasons. Some of the more common risk factors include: high-dollar prior history of protest; political visibility or involvement; or a significant change in the requirements or evaluation criteria from a prior similar purchase.
• Actively communicate with bidders during the bid process on specification or requirements issues. A pre-bid conference is an excellent forum for developing awareness of both supplier concerns and specification deficiencies. Encourage attendance.

Encourage questions from those attending. Use this opportunity to identify and understand bidders’ interests and concerns. Be sure to have someone else take minutes. Don’t rely on memory after the meeting to accurately document the pre-bid discussions. Respond to questions during the pre-bid and follow up in a timely manner with written questions and responses.

Be aware that the main objective of most bidders is to have a real opportunity to participate in a fair and open process. View these suppliers as partners in meeting the agency’s needs and let them know that they are seen as partners. Ensuring that the entity’s actions and words communicate this attitude to bidders goes a long way toward building trust and thus preventing protests.

• Strive to resolve all concerns before bid opening and certainly before award. Inform bidders that they must raise all relevant concerns regarding specifications or bid requirements before bid opening. Advise the bidders that if they fail to do so, subsequent protests based upon those issues may not be allowed.
• Thoroughly review all issues raised by bidders with the entity’s customers and team members. Attempt to accommodate these concerns wherever feasible. If changes in the bid document are necessary as a result of the review, publish an amendment promptly and distribute it to all potential bidders. Allow enough time for bidders to understand the amendment and incorporate changes as necessary in their responses.
• Don’t ignore bidder concerns. Often these concerns will reappear in the form of a protest. If the agency cannot accommodate the concerns of a bidder, inform that bidder as early as possible in the bid process and do so in a positive, proactive manner.
• Be timely in responding to bidders’ questions. Provide bidders with sufficient time to put together a bid package that will meet the entity’s needs. The number one reason bidders protest is lack of understanding of the “whats” and the “whys”. That is, they are not getting clear explanations justifying bid requirements or bid awards.
• Provide a debriefing opportunity for unsuccessful bidders. The debriefing is the best opportunity for the agency to help bidders understand why they did not receive the award. A well-done debriefing will earn the agency respect and credibility. Do not allow a post-award protest unless the bidder receives a debriefing.
• Provide all bidders with the same information. Treat them with the courtesy and respect they deserve. Encourage them to sharpen their pencils and provide the agency with the best bid possible.
• Document all decisions and pertinent conversations. If the protest goes to court, timely documentation carries more weight than memories or hearsay.
• Send written notice(s) of rejection to all nonresponsive bidders. Be specific and fully outline the reasons for rejection.

Encourage bidders to respond to future bid opportunities. Do this as soon as the bidder has been determined to be nonresponsive. If a protest is going to happen, it is in the agency’s best interest that it occurs before the agency issues the award. The impacts and risks ( read, costs) associated with a protest increase substantially as the bid process marches toward award. It is much easier to correct a flawed bid document with an amendment than it is to cancel an award–and certainly much cheaper than going to court.

In an opinion written during his tenure as Chief Judge of the United States Court of Federal Claims, Honorable Loren A. Smith, currently a Senior Judge of the Court, stated why there are bid protests:

“The purpose of the bid protest scheme is twofold. First, it is designed to benefit the taxpayers, and hence the government, by making government procurement both more fair and more efficient. This is so in various ways. If contractors have an honest and fair system, they will be more willing to deal with the government at a lower price. Also, if the government acts honestly and rationally, the government and the taxpayers will get the best deal for their money and needs… The other basic purpose is to benefit those who do business with the government. This is partially based on basic fairness or justice. People, whether citizens, foreigners, or even contractors, should be treated fairly. It is also based on sound business practice. It is critical to deal with vendors, suppliers, or customers properly. Otherwise, you may encourage them to treat you badly.”

Remember: An entity that does a competent and thorough job has little to fear from bid protests. Prepare for the inevitable protest just like practicing emergency preparedness.

Look forward to Part 2 of this series titled “Bid Protested–Are You Prepared?” This article will discuss how to plan and prepare to manage a protest. Part 3, the final article, will discuss the format and content of an entity’s written response to a protest.

Editor’s Note: Copies of the State of Washington, Office of State Procurement protest policy and procedure are available upon request. Please contact Jack Zeigler via email at [email protected].