By Kari Hawkins, AMCJuly 26, 2017
HUNTSVILLE, Ala. -- Defense industry protests filed on government solicitations and contracts can slow down the delivery of equipment and services to Soldiers in the field, which directly impacts the Army's readiness. But they can also lead to improvements in the way government agencies conduct acquisitions, and provide transparency for all parties involved, according to Department of the Army contracting officials.
Speaking to defense contractors from the Huntsville, Alabama, community at a Contract Administrators Roundtable July 24 hosted by the National Contract Management Association, three Redstone Arsenal contracting officials -- Rebecca Weirick, executive director of the Army Contracting Command-Redstone; Brian Toland, command counsel for the Army Materiel Command; and Charles "Tom" Kallam, command ombudsman for the Aviation and Missile Command -- and NCMA fellow and Alabama attorney Jerry Gabig agreed that bid protests can lead to lasting and beneficial change for the contracting community.
"From a government perspective, from the legal perspective, [Government Accountability Office] bid protests serve the interests of both the protestor and the government," Toland said,
ensuring that federal contracts awarded comply with law and regulations treating all bidders fairly.
The panel discussed various forums available to contractors to challenge agency contract award decisions. The most frequent forum is the Government Accountability Office. GAO bid protests are quicker, less costly, and often more beneficial than a contractor pursuing a remedy in the U.S. Court of Federal Claims, the roundtable panel agreed.
Using the GAO bid protest process means a decision on the merits will be issued within 100 days of a protest being filed. Federal courts often take much longer to decide, Toland said, which can have a negative impact on Soldier readiness as equipment and services are delayed in being awarded.
"GAO provides an inexpensive and expeditious forum for the resolution of bid protests," said Weirick, whose organization awards nearly 20,000 contract actions a year.
The panel also discussed protests filed at the agency-level, which are usually decided in 35 days or less. Agency-level protests have the benefits of a quick correction and resolution if a party interested in a government contract believes that an agency has violated procurement law or regulation in a solicitation for goods or services, or in the award of a contract, Weirick said.
"Communication is key. We encourage the parties to resolve issues at the lowest level," Weirick said. "We have processes in place to ensure a fair outcome and do our best to rectify errors."
Statistics show that government agencies conduct the vast majority of procurements in accordance with the rules set forth in the Federal Acquisition Regulation. Even so, the number of GAO bid protests increases every year, going from 2,561 cases filed in Fiscal Year 2014, to 2,639 in FY 2015 and to 2,789 in FY 2016. Of those filed in 2016, 616 qualified for a written decision from the GAO, and, of those, 139 were protestor wins, representing only one out of 20 protests actually leading to a favorable decision for the protestor.
The panel members agreed that avoiding protests through better communication serves the best interest of both the government and industry.
"Having open communication before filing a protest may alleviate the need to protest, which saves money and time, and allows us to improve," Weirick said. "Many times we can use alternate dispute resolution techniques that can resolve the issues before it gets contentious and people get emotional."
As the AMCOM ombudsman, Kallam works with about 250 defense contractors in the course of a year, providing them with information and clarifications on the bid process.
"We work at the lowest level to help defense contractors find an alternative when they think they need to file a protest," he said.
The panel also said that providing contractors useful information as to why they did not receive an award through the debriefing process is critical to transparency and open communications.
The panel members agreed that protests serve a critical purpose in the government acquisition system and balance the needs of government, industry and taxpayers.
"For the Army, the importance of defending protests comes back to readiness," Toland said. "Protests can slow down the ability to get the best services and the best equipment in the field for the warfighter. That's a matter we're thinking about every day and working hard to find solutions."