
Having led many source selections over the last two decades, I can assure you, unless you are a procurement nerd, they are not fun. However, ensuring a fair and comprehensive evaluation process is a fundamental part of the procurement process. Selecting the vendor who offers the best value while minimizing the risk of a successful protest is a tremendous responsibility. For those that are not in contracting, taking part in a Technical Evaluation Panel (TEP) is an opportunity to contribute to this bedrock process, potentially shaping mission critical capabilities, sometimes for the next decade. While the risk of protest is never 0, the risk of losing the protest can be managed. Based on my experience, here are 9 key strategies that can minimize the likelihood of a successful protest:
1. Deep Understanding of Solicitation Requirements: Unfortunately, many times evaluators are plucked from their day jobs and ‘volun-told’ to participate; often with having little to no experience or awareness of the requirements that had been solicited. So, begin with a thorough understanding of the solicitation requirements and evaluation criteria. It is critical that evaluations to align with the project’s goals and the criteria set forth in the Request for Proposal (RFP).
2. Objective Evaluation: I know everyone loves their incumbent (or at least they love them more than they like change). Nevertheless, maintain impartiality throughout the evaluation process. Evaluations should be influenced solely by the objective criteria outlined in the RFP and only consider what was included in the proposal, without allowing personal biases or preferences to affect the outcome.
3. Detailed Documentation: I get it. There is an insane amount of content to read and then you have to document everything. It is hard, or at the very least, painful. However, you must meticulously document every aspect of the evaluation process. This includes scoring rationales, comparative analyses, and any discussions or deliberations that influenced decisions. Such detailed documentation serves as a strong defense in the event of a protest, showing that all decisions were based on predefined criteria and were logically derived.
4. Consistent Application of Criteria: Most protests are lost not because the government made the “wrong decision” but because the evaluators didn’t do exactly what the government said they would do in the RFP. It’s essential to apply the evaluation criteria consistently across all proposals. Any deviation can be perceived as negligence, favoritism, or bias. This failure can undermine the integrity of the evaluation process and increasing the likelihood of a successful protest.
5. Confidentiality and Integrity: “With great power comes great responsibility” — Uncle Ben (Spiderman’s Uncle). Adhere to the highest standards of confidentiality and integrity throughout the evaluation process. Any breaches can compromise the evaluation and lead to legal challenges or protests. I have lived through this when a member of the team violated the integrity of the acquisition. It resulted in a brutal investigation and, albeit reasonable, scary threats of legal action from the victim (the injured vendor).
6. Collaboration and Communication: A source selection team is exactly that, a team. Things can get tense and, at times, have a sort of ‘hung-jury’ feel. Effective communication among TEP members is vital. Regular discussions can ensure that all evaluators share an understanding of the criteria and process, reducing the risk of inconsistencies or oversights.
7. Training and Preparedness: Training is not exciting, but it will make things go smoother. Engage in training sessions to understand the nuances of the evaluation process and relevant legal considerations. Being well-prepared helps TEP members perform their duties effectively and minimizes the risk of procedural errors that could lead to protests.
8. Transparent Justification of Decisions: I believe the best way to avoid a protest is to be incredibly transparent with vendors about why they didn’t win. Most companies spend months, thousands of dollars, sunk opportunity costs to compete. When they don’t win, at the very least, they need something to take back to the company to improve their chances next time. Being cagey with details just confirms their fears that you have something to hide. I have gone against legal advice here (at my professional risk) and provided more details than they wanted me to. The vendors told me it was the most effective debrief they had ever had and thanked me for giving them actionable details to take back to their leadership. In all my years and all my acquisitions, I only had two protests. Both were unsuccessful. Clearly and transparently justify all decisions. Such clarity shows that the evaluation was conducted fairly and in strict adherence to the solicitation requirements.
9. Awareness of Protest Grounds: Be aware of common grounds and timelines for protest, such as unclear RFP criteria, unequal treatment of vendors, and inadequate documentation. Understanding these potential issues can help TEP members conduct evaluations that proactively address potential areas of contention. I like to use down-selections to decrease the likelihood of protests. Allowing vendors to leave a competition before they have sunk month and thousands of dollars softens the blow. The phased process adjusts when vendors have standing, meaning they can either protest with partial information or have all the information but no longer have standing (assuming there was not negligence)
There you have it. Don’t fall victim to letting perfection become the enemy of good. You can not make your acquisition 'protest-proof.' Over indexing on risk prevention waists time. However, you can decrease the risk of losing a protest by following these steps.
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