As a bid protest lawyer, one of the most frequent questions I hear from companies considering whether to pull the trigger and file a pre- or post-award bid protest is “Can we win?” My response – regardless of the meritorious nature of the protest grounds and the corresponding flaws in the procurement – is necessarily tempered by sobering data that confirms what most seasoned government contractors already know: prevailing in a bid protest is an uphill battle. For example:
- In FY 2015, the GAO issued 587 opinions and sided with the protester only 68 times (reflecting a very low sustain rate of 11.58%).
- In FY 2014, the GAO issued 556 decisions and agreed with the protester just 72 times (yielding a similarly anemic sustain rate of 12.94%).
Those aren’t great odds for protesters. In fact, if the morning weather report predicted an 11.58% to 12.94% chance of rain, you probably wouldn’t bother bringing an umbrella to work, would you? Thankfully for protesters, the skies over the GAO are growing cloudier by the day.
The GAO’s December 15, 2016, Bid Protest Annual Report to Congress revealed that 2016 was a far more successful year for protesters, during which the GAO issued 616 decisions and sustained 139 protests – reflecting a total sustain rate of 22.56%. This dramatic increase in the sustain rate (an uptick of an astounding 94.8% from FY 2015) suggests that the government is having a much harder time conducting acquisitions in accordance with procurement laws and regulations. In this regard, the Report identified the following four “most prevalent reasons” for sustaining protests:
- Unreasonable technical evaluation – e.g., the Agency failed to evaluate an offeror’s technical proposal in accordance with solicitation requirements and/or conducted an evaluation that was inconsistent with the terms of the offeror’s proposal.
Unreasonable past performance evaluation – e.g., the Agency failed to consider various aspects of an offeror’s past performance record and/or unreasonably interpreted the content of the proposal.
Unreasonable cost or price evaluation – e.g., the Agency failed to evaluate properly the realism of an offeror’s proposed costs or failed to evaluate the reasonableness of an offeror’s proposed pricing.
Flawed selection decision – e.g., the Agency failed to consider the merits of offerors’ competing proposals, failed to properly document its award determination and/or based the award on inaccurate information.
The Report also noted that “a significant number of protests … 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.” This statement is a somewhat opaque reference to another data point in the Report – the “effectiveness rate” of protests – which measures how often the protester obtains some sort of relief (usually through the Agency’s decision to take corrective action) in response to the protest. In FY 2016, the effectiveness rate was 46%, reflecting a 1% increase from FY 2015. Note that “effective” does not necessarily mean “successful” for protesters and the data should not be interpreted to imply that protesters “win” nearly half of all protests. On occasion, an Agency will simply take corrective action in response to the flaws identified in the procurement and will subsequently issue an award decision to the same prior awardee or to another of the protester’s competitors. Such an outcome is hardly a “victory” in the eyes of the protester.
So, what to make of the Report? The new data from the GAO should instill empirical confidence in any company wishing to file a bid protest. Even if the government declines to take corrective action in response to the protest, the Report confirms that the GAO is increasingly willing to chastise the government for conducting slipshod acquisitions. This is a positive development for all contractors, many of whom may exercise their bid protest rights at some point in the future and all of whom want to make sure that the government administers procurements in accordance with law and regulation. These companies now have a reason to grab their umbrellas in the morning and, should they decide to protest, to prepare to start singing in the rain.