While the total number of protests at the Government Accountability Office were down in 2021, continuing a recent trend, the procurement programs at which those protests are targeted are still feeling the sting. An avalanche of protests killed off GSA’s planned Alliant II Small Business contract just a couple of years ago. Now, multiple protests are jeopardizing at least two other contracts: DHS’ First Source II and NIH’s CIOSP IV.  While First Source II has not incurred as many protests as the NIH contract, the issues involved have still managed to tie up awards for six months, with no end in sight. This puts DHS, and the small businesses that hope to obtain a First Source II contract, at a disadvantage. It also means that DHS will likely have to do a refresh before any orders are issued as technology will have inevitably changed from the time bids were submitted. NIH, meanwhile, has to contend with more than two dozen protests for its CIOSP IV contract. While only one, to date, has been partially sustained, damage, again, has already been done due to the significant delays incurred in clearing each one.

It is not unreasonable to ask whether significant protest actions are an indication that alternatives to large, substantially hyped, IDIQ contracts are in order. Although a higher number of smaller vehicles may be more difficult to manage, they also may be able to avoid costly and time-consuming protests. So, too, may GSA Schedules-based BPA awards (see article below). We wrote about this trend as far back as the mid-1990’s, noting then, as now, that large vehicles can be significantly delayed by protests, enabling vehicles like the GSA Schedule, to take away business, offer better-tailored solutions, and competitive pricing.

All three of these examples also have a common thread beyond the general scope as technology-based IDIQ contracts. All three are either specifically for small businesses or feature substantial small business participation. This is no slap at small businesses, or any other sized business. It is, however, notable that procurement agencies seem to have a hard time balancing the need to open the acquisition process to small firms, while still ensuring that the government is doing business with qualified companies capable of performing per contract requirements. Ironically, protests killed off an entire procurement, harming more small businesses than they helped. Only time will tell if protests will also kill off First Source II or CIOSP IV. Already, however, multiple industry voices have called on NIH to scrap their current procurement and start again.

All of this should be a huge wake up call for GSA as it readies the release of its POLARIS small business contract and for GSA’s Services MAC team, currently planning the follow-on to the popular OASIS contract. POLARIS is a small business-set aside and there may not be much GSA can do to prevent small businesses from protesting everywhere and anywhere. The best they can hope for is that none of the protests will be successful. The Services MAC, however, does NOT have to be a single contract. OASIS features both unrestricted and small business companion vehicles. The Services MAC team should carefully consider whether they want their marquis services IDIQ vehicle to be subject to potentially killer protests. There is still time to adopt a two-tiered acquisition approach.

The right to protest is unique in government contracting, but can serve as an important check. Unfortunately, it can also lead to significant program disruptions that may add to the debate on whether alternative acquisition methods should be considered.

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