In this captivating presentation, attorneys Joel Hamner and Stephanie Siler from Whitcomb PC share valuable insights into government contracts,...
A biased bid selection process represents one of the biggest threats for procurement officials. Such bias
leads to a bad selection decision for a government contract, wasting taxpayer money. Moreover, it may
lead to a procurement bid protest. The Government Accountability Office (GAO) put out a report in 2017,
which found that a “flawed selection decision” was one of the top four reasons for successful bid protests
- and over 22% of bid protests succeeded that year.
What Do Lawyers Working on Bid Protests Say About Bias?
In 2021, the US Congress commissioned a bid protest study at the Defense Department referencing the
work of Dr. Christopher Yukins, a professor of procurement law at the George Washington University Law
School. When I interviewed Dr. Yukins about the future of procurement and bid protests, he told me that
“governments clearly benefit from a shift to risk mitigation” so as to address bias, including treating bid
protestors as whistleblowers bringing attention to procurement risks. Yet, he also told me that
“government lawyers don’t want to shift” to this mindset and legal strategy, because “it will result in more
protests.” However, given the push by Congress, that shift may be inevitable.
That’s the perspective of a highly-respected academic deeply involved in formulating policy and advising
Congress. What about practitioners in the trenches?
Jason Richey, Partner, K&L Gates LLP, has a particular perspective due to his extensive experience in
state and local bid protests, which differs from lawyers focusing on federal-level bid protests. He told me
that in his experience, there’s a common bias by evaluators in favor of the incumbent whom they know
well and are predisposed to like. In other cases, he sees biases by bidders who wined and dined the
evaluators, creating a favorite going into the event that manifests in the scoring. Another problem comes
due to groupthink in the scoring process, when some powerful individual or individuals among the
evaluators pushes the group of evaluators toward or away from a certain bidder. In fact, he says he saw
biased procurement so much that it “make me sick as an American,” because the same thing goes on in
state after state and locality after locality. To fix the system, Richey argues that we need much more
transparency and clarity about the RFP and the scoring in the bid process. He also calls for having
procurement be handled by professional procurement evaluators instead of the agency issuing the RFP;
having professionals handle it reduces the opportunities for cognitive biases coming from the agency’s
pre-existing relationships with bidders and unconscious prejudgments of various bidders. He says that a
big problem is government officials in charge of procurement being hired by companies who bid on
government contracts, and highlights the benefit of a cooling-off period to not allow companies who made
such hires to bid on government contracts for a year after the hire.
At the federal level of the Government Accountability Office (GAO) or the Court of Federal Claims, the
situation is more tricky. According to Kevin Barnett, Co-Chair of Government Contract Claims & Appeals
Team, PilieroMazza LLP, “the discussion of bias” is best used to “amplify other protest arguments. For
example, it may bolster an argument that the Agency overlooked information or may provide the
necessary nudge to show that the Agency favored one proposal’s benefit more favorably than another
proposal’s benefit.” But just an accusation of bias by itself would not be effect: “the bias argument would
need to be complementary to another viable protest argument to make a difference.” That’s because,
according to Mr. Barnett, the “deferential standards used by GAO and the Court of Federal Claims are
inconsistent with examining the unintended biases that may have influenced the decision and attempting
to untangle those biases.”
According to John R. Herin, Jr., Partner, Fox Rothschild LLP, the key to making a case for bias in bid
protest involves a complete and detailed review of the request for proposals, which may reveal “that the
way the government staff put together that particular procurement was inherently (unconsciously) or
purposely intended to generate a predetermined or ‘biased’ result.” As part of this assessment, it’s
important, according to Mr. Herein, to involve an “expert witness in the above described review and
analysis process to assist in the identification of subtle and not so subtle ways that the government
agency staff at issue may have drafted the procurement vehicle in such a way to seek a particular
outcome (unconsciously or consciously).” The increased recognition of the danger of cognitive biases for
procurement provides a precedent: “the more there are reported cases where courts determine the
presence of cognitive bias in procurement disputes the more widespread the use and reliance of expert
witnesses in this area will become.” As a result, “more government agencies are likely to move away from
‘loosie goosey’ procurement standards to more objective standards thereby – hopefully – reducing the
number of bid protests that assert cognitive bias.”
To prove the presence of bias requires “a methodical review of record, especially the proposals, to
establish that the procurement team scored/rated the proposals differently for substantially similar
features,” according to Tara D. Hopkins, Government Contracts Attorney, K&L Gates LLP. To make the
case for bias, it helps to have a litigation consultant with a PhD level analysis that would work with the
plaintiff’s attorney “to establish the problem in the procurement, such as bias, not only occurred, but that
the problem changed the outcome, to their clients detriment.” Ms. Hopkins highlights how, until
government agencies require “training for cognitive biases for their procurement officials, bid protest
allegations for failure to remain impartial will continue to be a regular occurrence at GAO and the U.S.
Court of Federal Claims.”
The structure of the RFP is crucial to determining the success of bid protests and accusations of bias,
according to Trent Cotney, Partner & Construction Team Leader, Adams and Reese LLP. That’s because
“Bid standards are normally delineated in advance including the process and procedures for selection. By
participating in the process, bidders tacitly agree to the selection criteria.” This makes it really important to
assess the RFP and challenge it before engaging in the bid process. Regarding bias, a “standard used to
determine if a bid award is improper is if the agency acted in an "arbitrary and capricious" manner,” which
can result from bias. But if “the procurement officials adhered to the stated selection criteria, a court
would be hard-pressed to overturn a decision absent some overt evidence of fraud, pecuniary bias, or
similar egregious conduct.”
To prove the personal bias of a former agency official with inside information regarding the procurement
who joins one of the competing teams, John Chierichella, Founder, Chierichella Procurement Strategies
LLC describes the need to “prove his prior agency role, his access to non-public procurement sensitive
information, his participation on his new employer’s RFP team.” To prove bias in the development of the
requirements for the RFP, “you will need to show the comparison of the RFP requirements to the
competitor’s product/system and what it is that makes it difficult if not impossible for anyone else to
compete realistically. You will also need to show that the exclusionary factor is not necessary.” In such
cases, you’ll need to use expert witnesses “to demonstrate, e.g., how non-public information could afford
an advantage to the recipient, how it might have influenced the proposal, where it can be detected in the
proposal,” and so on.
Nicole Pottroff, Equity Partner, Koprince McCall Pottroff LLC says that “the ever-developing field of
psychology has the ability to shine some light on bias in the procurement process. This is where litigation
consultants and expert witnesses can provide substantial benefit.” As she notes, “when it comes to bid
protest, we generally tell clients we like to take the shotgun approach: throw all reasonable grounds of
protest at the reviewing body or court, and see what sticks.” As a result, “utilizing a litigation consultant or
expert witness to make the case for bias—while I focus on other arguments—is a solid gameplan. It is
one that puts the client in the best position for success in a bid protest world where the majority of
protests do end in dismissal.” Given “the standard of review being such a high bar for bias, it would be
incredibly supportive to a plaintiff’s case to have scientific support for such a protest ground.”
From the perspective of Cy Alba, Partner, PilieroMazza, PLLC, there’s a problem currently in the
procurement and bid protest system of the GAO: “federal government employees are afforded a
presumption that they always act in good faith (i.e., free from bias).” That helps explain why “many
protesters eschew GAO and go to the US Court of Federal Claims as there you are more likely to get
documentation to get to the truth of the matter and not simply have GAO run interference for an agency to
cover up bias and impropriety.” However, in Mr. Alba’s view, “given what we now know of inherent
biases,” he “would strongly recommend that the ;presumption of good faith’ be eliminated as a relic of a
more naïve era and allow reasonable investigation into the biases and motivation into bid protests,
especially where expert testimony indicates a likely problem of bias in the evaluation.”
The trick with proving bias is tying bias to some failure in the process itself, in the opinion of Danny Cook,
Government Contracts Partner at DLA Piper LLP. It’s important for a bid protest attorney to identify and
read between the lines about bias to tie it to specific laws that were violated by government officials. In
some cases, bias is evident when the RFP is issued, and it’s important to spot this issue at the pre-bid
protest if possible, since a pre-bid protest is an easier case to make and requires less of a burden on the
lawyer to prove bias. Mr. Cook says that “the more companies feel that government decision making is
plagued by bias, the more they will retreat from the system,” which makes it especially important to
address bias within the system for the sake of high-ROI procurement outcomes.
Tom Craig, Managing Partner, Fluet Huber + Hoang PLL and Marlena Wald Partner, Fluet Huber +
Hoang PLLC aligned with Mr. Cook’s perspective on pre-award bid protests, as it’s much easier to make
the argument for bias in bid protests about the criteria of the RFP. For example, they often find that the
amount of experience described as necessary is narrowly tailored as a requirement to fit only one firm.
That’s especially the case for sole-source justification bids. More broadly, they find that there are two
kinds of bias frequently present: a bias for incumbents and a bias for big brands.
The crucial thing to do in a bid protest is to show where government officials failed in their evaluation –
either because the source selection authority was biased or for some other reason, in the perspective of
Jonathan Perrone, Attorney, Whitcomb, Selinsky, P.C. Given that, “experts that understand bias could
lend credence to attorney arguments by showing why/how source selection officials err in their
evaluations based on those officials’ stated rationales.” That’s why Mr. Perrone says that “government
agencies should train their source selection teams to understand and mitigate the negative effects of
these kinds of biases.”
Dave Johnson, Partner at Vinson & Elkins LLP told me that “the general standard for being successful in
a bid protest is proving that the agency decision makers made an unreasonable or irrational decision,”
and thus “if a bid protest lawyer can demonstrate bias in this context she/he can have success in a bid
protest.” On a related note, “sometimes you can see that agency personnel seem to want a result and in
order to document/validate that, they bolster their decision with considerations that they did not inform the
competitors about,” which “can lead to unequal treatment or the use of unstated criteria, both of which are
possible winning arguments.” He says that the Court of Federal Claims and the GAO “will always give
agency employees the benefit of the doubt, so the key will be how compelling a case can be made for
cognitive bias that overcomes the deference and demonstrates unreasonableness or irrationality.”
Congress has recently taken action to address the deference, fortunately. Jim McCullough, Head of
Government Contracts Practice at Fried, Frank, Harris, Shriver & Jacobson LLP, pointed me to Congress
passing at the end of 2022 the “Preventing Organizational Conflicts of Interest in Federal Acquisition Act”,
P.L. 117-324. This act requires revisions to the Federal Acquisition Regulations concerning such conflicts
of interest over the next 18 months, which currently address areas of bias such as “impaired objectivity”
conflicts and “biased ground rules.”
Other lawyers, who preferred to be off the record due to ongoing cases where going on the record might
impact proceedings, shared similar sentiments. One said “Your article points out a blind spot in
government procurement. I think that government employees, like anyone else, are susceptible to implicit
biases and cognitive bias.” And another highlights the importance of training in addressing cognitive
biases: “I think more work would need to be done on the front end to educate agencies about cognitive
bias and the need to correct for it. Once some agencies have taken steps to do that in acquisition
planning, it will be easier for protesters to make the case that it is unreasonable not to.”
Medicaid Bid Procurement Process Protests Threaten Many Billions of Dollars
As an example of what to do and what not to do, let’s take a recent bid protest against a Medicaid
insurance management contract award of over $20 billion in a large state. I have personal knowledge of
the case, as I had the privilege of participating as an expert witness on bias in procurement bid protests
due to my expertise as a behavioral scientist and consultant in debiasing procurement bias.
While I will keep my client and role confidential, we have plenty of publicly-available information about the
danger of bias in state Medicaid procurement awards. Such biased decision-making procurement
processes scuttled billion-dollar awards and many months of effort on the part of procurement officials,
along with many millions of dollars in legal costs.
For instance, in October 2020 a judge in Kentucky overturned its $8 billion Medicaid contract award due
to factors such as an award process that was“‘arbitrary’ and poorly documented,’” with “multiple
irregularities of the scoring and evaluations process.” Texas had to redo its own $10 billion Medicaid
award because “the scoring process was arbitrary and inconsistent.”
Six Key Debiasing Techniques to Protect the Procurement Process From Bias
One debiasing technique is having clearly-established, thoroughly-defined criteria for evaluation that are
made available in advance to the applicants. After all, if you want a process that is transparent, unbiased,
and fair, and gets the best possible applications, you will want to help applicants do their best to address
Unfortunately, in the case of the Medicaid procurement where I ended up participating in the bid protest
lawsuit, the criteria were very broad and vague, namely “methods of approach,” “capability,” and
“experience.” They’re not simply confusing for the bidders: they’re confusing for internal stakeholders in
the procurement process as well. For example, the Director of the Medicaid Department in the state said
that the criteria of “experience” favors incumbent bidders in the state. By contrast, the official in charge of
Medicaid Procurement claimed that “experience” refers to having provided similar services, whether in the
state or outside of it. And another evaluator indicated he would give more points to providers who had
experience outside the state - directly opposed to the idea of incumbency. This confusion is the very
definition of failing to protect from bias.
Another debiasing technique is having a blinded process where the evaluators don’t know the identity of
those they are evaluating. This does not mean that the applicants need to hide their capabilities, just not
mention their name in the applications.
Given everyone in the Medicaid procurement process knew who the applicants were, anyone could sway
the process based on bias. It would have been prudent for procurement officials to reduce their legal
liability by having a blinded process. After all, they were not supposed to consider the identity of the
bidding insurance companies, just their capacity based on what they submitted in the proposal.
A third debiasing method involves implementing “enhanced consensus scoring.” After individual
evaluators rate each bid, there needs to be some way of integrating the scores. Simply adding them up
removes the possibility of addressing potential bias by individual evaluators.
To address this, some procurement officials like to hold a consensus scoring meeting where all the
evaluators discuss their scores and are encouraged to reach a consensus. This method works poorly, as
it is vulnerable to the phenomenon known as groupthink. This concept refers to the opinions of people in
a group coalescing around the perspective of the most powerful person in the group. Groupthink is driven
by a desire for consensus among a group of people, where there are some people with more power and
some with less. It often leads to a biased outcome due to unintentional (or sometimes intentional) peer
pressure effects, where some evaluators may have hesitations about the beliefs of those with more power
but agree for the sake of keeping the peace. We had clear evidence that the Medicaid procurement
process consensus meeting suffered from groupthink.
Much better is the enhanced consensus scoring approach. In this technique, only outliers - especially
high or low scores - are discussed. Importantly, evaluators are not pressured to come to a consensus and
necessarily change their scores. Instead, the enhanced consensus scoring meeting is an opportunity for
all to share their opinions, and then evaluators can change their scores or not, as they wish. This type of
scoring process balances reducing bias due to individual variance between evaluators and minimizing the
problem of groupthink.
A fourth debiasing technique is having clear evaluation records. That includes individual evaluators
justifying thoroughly the reasons for giving a score on the individual assessment component. Having
written justifications forces evaluators to thoroughly consider their own reasoning and defend it against
potential observers, which helps minimize the biases described above. That also includes a thorough
recording of the deliberations at a consensus meeting. Again, such recording leads both evaluators and
facilitators to consider potential external observers and thus minimize biases.
Unfortunately, the Medicaid procurement officials failed to keep records, making them more vulnerable to
legal action. Recall that failing to keep clear records constituted one of the reasons for overturning the
Kentucky Medicaid award.
A fifth basic protection is having diverse external evaluators, rather than evaluators who: 1) belong to the
same organization; 2) especially not those who belong to the organization making the request for
applications; 3) and you want to avoid at all costs evaluators who were involved in formulating the
questions. However, the Medicaid procurement process failed on all three counts.
A sixth basic protection is ensuring that no key stakeholders have any material conflicts of interest with
any of the applicants. The potential for self-serving bias and belief bias are evident.
Yet the state’s Director of the Department of Medicaid held stock in some of the insurance companies
that bid for the award. And the consulting company hired to facilitate the bid had business dealings with
some of the bidding insurance companies. Ironically, this very circumstance had led to successful bid
protests against Medicaid awards in other states that hired this consulting company.
Don’t repeat the mistakes of the state Medicaid procurement officials that put an over $20 billion award
and a year-long procurement effort under legal jeopardy. Protect yourself in advance from the kind of
contract award debacles that scuttled the Kentucky and Texas Medicaid awards. The small effort required
to put in the six debiasing techniques will help protect you against the calamity of a successful bid protest.
These protections will also minimize the likelihood that any bidder will even try to launch a protest,
because you can demonstrate how you followed evidence-based, science-based best practices to
address any potential source of bias.
Bio: Dr. Gleb Tsipursky helps leaders make the wisest decisions and avoid disasters as the CEO of the
boutique consultancy Disaster Avoidance Experts. A best-selling author of 7 books, he is especially wellknown for his global best-sellers Never Go With Your Gut: How Pioneering Leaders Make the Best
Decisions and Avoid Business Disasters (Career Press, 2019) and The Blindspots Between Us: How to
Overcome Unconscious Cognitive Bias and Build Better Relationships (New Harbinger, 2020). His newest
book is Leading Hybrid and Remote Teams: A Manual on Benchmarking to Best Practices for
Competitive Advantage (Intentional Insights, 2021). His writing was translated into Chinese, Korean,
German, Russian, Polish, Spanish, French, and other languages. His cutting-edge thought leadership
was featured in over 650 articles and 550 interviews in prominent venues. They include Harvard Business
Review, Fortune, Inc. Magazine, CBS News, Time, Business Insider, Government Executive, The
Chronicle of Philanthropy, Fast Company, Boston Globe, New York Daily News, Fox News, USA Today,
Forbes, and elsewhere. His expertise comes from over 20 years of consulting, coaching, and speaking
and training for Fortune 500 companies ranging from Aflac to Xerox, as well as mid-sized companies,
nonprofits, and government agencies. It also comes from his research background as a behavioral
scientist. After spending 8 years getting a PhD and lecturing at the University of North Carolina at Chapel
Hill, he served for 7 years as a professor at the Ohio State University. A proud Ukrainian American, Dr.
Gleb lives in Columbus, Ohio (Go Bucks!). In his free time, he makes sure to spend abundant quality time
with his wife to avoid his personal life turning into a disaster.
[Reprinted with permission from Disaster Avoidance Experts]
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