This week, the Government Accountability Office (GAO) released its annual Bid Protest Report for Fiscal Year 2014. GAO is required by the Competition in Contracting Act to submit this annual report to Congress. The report contains some information which may be of interest to contractors, particularly the bid protest statistics.
According to GAO, while the number of bid protests filed increased 5% versus FY2013, the number of sustained decisions decreased quite a bit. From FY2010 through FY 2013, GAO sustained an average of 17.7% protests. The number of sustained protests fell sharply in FY2014, as less than 13% of cases were sustained.
However, this decrease in the sustain rate should not serve as a deterrent for potential protesters. The sustain rate only includes cases that make it all the way to a decision on the merits (sustain or deny). It does not include the instances where the protester received some form of requested relief, through a voluntary corrective action taken by the agency.
When factoring in voluntary corrective action, as well as sustained protests, protesters were “successful” on 43% of GAO protests in FY2014. This number has remained fairly steady over the past five years, falling in at either 42% or 43% each year.
Given the static nature of the “success” rate of protests and the decrease in sustained decisions, it can certainly be inferred that contracting agencies were much more willing to undertake voluntary corrective action in response to a protest. It is unclear if this trend will continue in the future, but those with an optimistic view would see this as a sign that agencies are becoming more likely to admit to and correct a mistake in a procurement. The pessimists among us would surely say that agencies are becoming more adept at using corrective action to fix weak spots in their procurement decisions. Whether the truth is one extreme or the other, or somewhere in the middle, this is certainly a trend worth monitoring.