“What are my chances?” This is the most common question clients ask when considering whether to protest. GAO’s Annual Report to Congress shows that the “effectiveness” rate of protests is over 50 percent and continues to rise over the last twenty years. Protesting at GAO continues to represent a good value for contractors, especially considering the relatively low cost to protest.
An “effective” protest is one where the protester receives some form of relief – either due to (1) agency corrective action or (2) GAO issuing a decision sustaining the protest. While the facts for any individual case change those chances substantially, the effectiveness rate has remained above 40 percent since 2004. Since then, the rate has gradually improved and is stable above 50% over the last three years. Understand, however, that relief in the form of corrective action does not necessarily mean the contractor will receive the final award of the contract. Oftentimes corrective action simply means the agency made some procedural mistake and must fix it before finalizing award.
Taking into account that many protests are filed by pro se contractors representing themselves, the odds of receiving some form of relief with the aid of an experienced bid protest lawyer are substantially higher than a coin flip. Not only does involving counsel in a protest increase odds of success, it can also help contractors to avoid throwing good money after bad on a doomed protest. Similarly, contractors should consider whether a protest would have better odds if filed at the agency level or at the Court of Federal Claims. I have written extensively about how differences between these venues in terms of timing and interpretation of the FAR can be decisive.
In November’s Report, GAO reported that the total number of protests per year continues its decline since a peak in FY16. In FY24, 1,803 cases were considered including 1,740 protests, 33 cost claims, and 30 requests for reconsideration. Just under one quarter of protests resulted in a GAO decision on the merits. Of those, GAO issued sustained sixteen percent and denied the remainder.
Since 2008, the chances for a contractor who receives a decision on the merits hover around fifteen percent. This year was no different, where sustained protests clocked in at 16%. The three most common reasons for a sustained protest are (1) unreasonable technical evaluation, (2) flawed selection decision, and (3) unreasonable cost or price evaluation.
Bid protests remain an effective use of contractor resources. While we all hear about egregious instances of fraud and abuse in procurement, protests serve as a vital mechanism to keep government accountable, transparent, and fair to those competing for federal work.