There has been a greater push under the Obama administration to purchase technology that meets a certain baseline of quality for the lowest price possible instead of searching out the best value, said Jonathan Kang, an assistant general counsel at the Government Accountability Office.
Kang, who oversees a team of bid protest attorneys in GAO’s Office of the General Counsel, said the trend is to shy away from finding the place where price meets technical merit, but to set a bare minimum for technical capacity and then let the contracting community try to outbid one another.
“The push the past 20 years has been to find that best value,” Kang said, “but we’re seeing a shift in recent years to push procurements in another directions where the government is trying to simply get the lowest price for a certain technology.”
That has slightly altered how GAO looks at contract protests of which it saw more than 2,500 in federal fiscal year 2012. That number has grown steadily over the past decade as contractors have greatly increased the number of awards they’ve contested, partly because – many believe – a strategy to win part of a contract a company originally lost, although many claims are still seen as legitimate.
Kang said GAO has not had the resources to hire more attorneys to handle the increased load, but is simply trying to do its best. That includes using – whenever possible – alternative dispute resolutions that avoid a full written decision.
“For example, we’ll give a company or an agency an informal view of what we’ve found and see if they want to proceed,” Kang said. “Many times, the company or agency would rather follow what’s set forth in the informal viewpoint and either give up the protest or in the agency’s case, make any changes necessary.”
Those types of decisions allow GAO to keep its bid protest caseload moving as approximately 1,900 of the agency’s nearly 2,500 cases were closed without a written decision.
Kang also offers advice for federal agencies to help them avoid what is the basis for most contract bid protests: failure to follow the solicitor generals group rules, not treating all offers equally and not properly documenting the solicitation.
“If an agency follows all of those rules, they will avoid a lot of the protests that come up,” Kang said.