The Government Accountability Office (“GAO”) issues statistics each year regarding the outcome of bid protests. In 2015, there were 2,639 cases filed and there we 587 decisions on the merits. Of those, only 68 protests were sustained. According to the way the GAO presents its statistics, that would indicate that protestors prevailed approximately 12% of the time. In reality, since many protests were withdrawn or summarily dismissed, the protesters only prevailed in 68 of the 2,639 protests filed and the true success rate was closer to 3%. With those odds, why would anyone file a GAO bid protest? The answer requires a little closer scrutiny since statistics can be misleading.
There are a number of protests which should not have been filed in the first place since they are not supported by the facts or case precedent. This could have been avoided by thorough legal research of prior decisions of the GAO and the United States Court of Federal Claims. Careful screening before filing a protest will ultimately lead to a greater number of potentially meritorious protests. It must always be kept in mind, however, that great deference is shown to the discretion of contracting officers. What that means is that if the source selection boils down to a judgment call, the government is going to prevail.
The GAO reported that the most prevalent reasons for sustaining protests were:
(1) unreasonable cost or price evaluation
(2) unreasonable past performance evaluation
(3) failure to follow evaluation criteria
(4) inadequate documentation of the record
(5) unreasonable technical evaluation.
It is important to note that a significant number of protests filed with the GAO do not reach a decision on the merits because agencies voluntarily take corrective action in response to the protest rather than defend the protest on the merits. Agencies need not, and do not, report any of the myriad reasons they decide to take voluntary corrective action. If an agency decides to take corrective action, however, it may mean that the protest has merit and the corrective action may lead to a re-evaluation of the proposals. In many cases, this is very outcome that would have resulted from a GAO decision. In cases where the GAO dismisses the protest because the agency decides to take corrective action, those protests are not be included in the GAO’s calculation of protests decided on the merits.
One drawback in the system, however, is that in a negotiated procurement the protester is operating at a disadvantage because the source selection decision and supporting documents are not available for review. This puts the protester in the difficult position of having to file the protest in order to determine whether there is a sound basis for the protest. The critical agency documents are only made available to the protester’s attorney under a protective order. It may be that after the protester’s attorney reviews the documents, which he is not permitted to share with this client, it will become apparent that the agency made a proper source selection. That does not mean that the protest should not have been filed, however, because the protest was essential in order to obtain the best information. There was also a possibility that favorable documents would have been located that may have led to a successful protest. In fact, all of the most prevalent reasons for sustaining a protest, as listed above, were dependent upon review of the agency’s documents after the protest was filed.
Michael H. Payne is the Chairman of the firm’s Federal Contracting Practice Group and, together with other experienced members of the group, frequently advises contractors on federal contracting matters including bid protests, claims and appeals, procurement issues, small business issues, and dispute resolution.
Amy M. Kirby is an Associate in the firm’s Federal Contracting Practice Group and focuses her practice on government construction litigation. Amy’s practice includes a wide variety of federal construction matters.