On January 2, the Government Accountability Office (“GAO”) provided its annual report to Congress of bid-protest activity for fiscal year (“FY”) 2013. The primary purpose of these reports is to meet the Comptroller General’s requirement under the Competition in Contracting Act to inform Congress of each instance in which a federal agency declined to implement the GAO’s recommended course of action to resolve a bid protest. But since the early 2000s, the GAO has also presented a collection of statistics in these reports, comparing bid-protest activity for the fiscal year at issue with data from prior years.
At first glance, it can be difficult to discern any meaningful conclusions from this data, except that contractors file a lot of cases with the GAO these days – on average more than 200 per month in FY 2013. A closer look, however, gives rise to some interesting trends, including the potential that – contrary to popular belief – competition for shrinking federal dollars has not prompted a steady increase in bid protests. Instead, after a burst of protest activity in the late 2000s, contractors today may be choosing their battles more carefully.
The most obvious sign that a protest is not today’s default course of action is the fact that contractors filed 2 percent fewer cases in FY 2013 than in FY 2012. This is the first time since FYs 2005 and 2006 that contractors filed fewer cases in a subsequent fiscal year than in the previous one. And compared with the double-digit growth in the GAO’s case load from FYs 2008 through 2010, the modest increases in filings in FY 2011 and 2012, suggest that contractors of late have been more cautiously optimistic about their chances for success through protests. Finally, for the first time since FY 2000, the GAO closed more cases than it received in FYs 2012 and 2013. This may be a sign that fewer knee-jerk protests are being filed at the very end of a fiscal year, and protest decisions are made more judicially during the course of the year.
The GAO’s statistics also show that cautious optimism on the part of contractors is a prudent choice. In both FY 2013 and 2009, sustain decisions accounted for only 3 percent of all of the cases closed by the GAO (and in the intervening fiscal years, this rate never exceeded 4 percent). Additionally, in FY 2013, protest denials and withdrawals collectively accounted for close to 60 percent of all cases closed by the GAO. This is not to say, however, that a protest is not a viable option for pursuing a desired contract. The remaining 40 percent of cases closed by the GAO in FY 2013 were the result of agency corrective action. But ending up in this 40 percent, or the exclusive 3 percent of contractors whose protest actions are, to borrow the GAO’s designation, “effective,” is both a science and an art. Given these statistics, contractors should work with attorneys who understand the science and art of bid protests to help them determine which actions are worth the fight.