Beware the Bogeyman: Preparing for Protests

COMMENTARY

It was a dark and stormy night in June 2020 when the U.S. Transportation Command rescinded its recently awarded $20 billion Global Household Goods contract. The awardee had fallen victim to a procurement bogeyman that is all too real: a protest. At the risk of being obvious, $20 billion is a lot to lose.

This is a cautionary tale for any contractor who might consider an initial award a “happily-ever-after” ending. A disaffected competitor will always protest, but there are proactive ways to minimize the chances of losing. Here are three steps that smart offerors can take to protect their awards.

First, always assume a protest will occur. In 2021 alone, 1,816 protests were filed with Government Accountability Office; 85 of those — 15% — were sustained. By incorporating “red team” specialists into bid teams, offerors can better identify “blind spots,” gaps and contradictions that opponents can exploit. No offer is perfect, so understanding possible weaknesses is key to knowing how a protestor might attack. In the case of the TRANSCOM protest, the awardee’s high cost, lack of small business suppliers and even a criminal history made the award an easy target.

Enlisting a red team to prepare a mitigation strategy ahead of the award certainly would have helped the TRANSCOM awardee. A red team can bring fresh eyes to a proposal to ensure that every issue is addressed and every box checked. The red team can also ensure each volume of a proposal is self-contained, does not attempt to “import” information from other volumes and that that responses to discussion questions actually answer the mail. Remember, the government’s evaluation team is usually structured to evaluate individual volumes (e.g., technical, management, past performance, etc.) Most evaluators will not go to other volumes looking for missing information, and the GAO will not require them to do so.

A red team can help identify weaknesses beyond technical issues. In fact, the TRANSCOM outcome was heavily influenced by eyebrow-raising elements that caught the attention of the public, the media and, more importantly, members of Congress. The most successful contractors have learned from the mistakes of protest victims past and consider not only the merits of their offers but also vulnerabilities from a public relations standpoint. By mitigating their weaknesses and preparing for public attack, awardees can maximize their ability to survive the protest bogeymen who lie in wait.

Second, remember that protests are won and lost on documentation. For this reason, it is crucial to keep a paper trail of all communications around the proposal and its development. All too often, phone calls between offerors and agencies go undocumented, resulting in allegations of improper contact or reliance on assumptions not corroborated in the record. Because agency officials and contractors can have friendly relationships, undocumented contact during a competition can be misconstrued by a protesting entity and end up being a liability. If a phone call to the agency is important, be sure at least to take notes; better still, put everything in a confirmatory Bidders Question that should be incorporated in the request for proposal and thereby reduce risk of a “disparate treatment” protest down the road.

Finally, don’t defer preparation until a protest is actually filed. Due to the GAO’s Protective Order process, time is not a friend. In intensely competitive awards, the awardee increased their chance of survival by organizing a team to assess the protestor’s likely lines of attack in anticipation of a protest. Armed with a matrix of relevant issues, portions of the solicitation the awardee’s proposal and more, the awardees were ready for the monster lurking just around the corner.

Because no protest had yet been filed, the awardee’s protest counsel could participate fully on the team, without concern for the limiting effect of a Protective Order that had yet to issue. When the protest was filed, protest counsel was well-armed to implement an effective defense.

The protest bogeyman is a real one, but just like in a horror film, the hero can always beat it. By utilizing red teams to identify weaknesses, focusing on documentation and preparing for likely lines of attack, the smartest contractors can ensure there is no sequel to the scary movie.

John Chierichella is the founder of Chierichella Procurement Strategies, a consultancy helping contractors pursue and perform federal contracts and subcontracts. An alum of Shepard Mullin, Chierichella has 50 years of bid experience and is nationally recognized by Chambers & Partners, Legal 500, and most recently by Who’s Who Legal as one of the most instantly recognizable names in government contracts law.