Better Acquisition Management through Alternative Dispute Resolution (ADR) and Other Best Practices for Preventing and Resolving Bid Protests

Abstract

This project examines bid protest prevention and resolution strategies to shed light on ways to save the government money and time. Successful resolution of protests depends on a number of factors, including government and private sector protest management and litigation strategies; Alternate Dispute Resolution (ADR) policies of federal agencies; legal and regulatory requirements; and remedies available to contractors. Our research identified and analyzed best ADR practices and other remedies and preventive methods for resolving bid protests. Areas examined include processes and remedies utilized by selected federal agencies and obstacles to fomenting improved cooperation between industry and government, which may preclude win-win resolutions to bid protests. Insights regarding the validity of our entering hypotheses about ADR were obtained from a survey of acquisition and legal professionals regarding their perceptions, opinions, and recommendations on bid protest practices and the use of ADR procedures. Our objectives were to identify ADR and other process improvement recommendations that are crucial to effective contracting and support the government's efforts to improve adjudicative forums for resolution of contract disputes and bid protests. Our research suggests that agencies can mitigate protest expenses and interruptions by managing the protest process in a systematic, business-like way. At the present time, agencies rarely use most procedural tools that are required or authorized under federal laws and regulations to reduce time delays and costs from bid protests. Among other things, we recommend energetic agency approaches to preventing disputes (e.g., quality debriefings) and dealing with disputes (e.g., formal cost-benefit analysis of agency defense strategies, strong defense of agency actions, and full use of ADR methods). We also recommend ADR as the default method for settling bid protests.