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To Protest or Not to Protest? That Is the Question

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With the majority of large federal contract awards being protested, many contractors, logically enough, ask, “What are my chances of actually winning a protest?”

The U.S. Government Accountability Office recently released its “Bid Protest Annual Report to Congress for Fiscal Year 2014,” which sheds light on the protest win rate.

This report details, among other data, the five year “Sustain Rate” trend, which is at a significant low of 13% over that time period. This means that the number of protests that are “won” by protestors is at a low—and makes the decision to protest more difficult.

Here is a summary for fiscal 2014:

  • In 2014, GAO received 2,561 cases. Only 2,445 cases were protests and, of this number, many overlap as they were supplemental protests or multiple parties protesting the same procurement.
  • GAO reached a decision on the merits in only 556 cases (approximately 23% of the protests).
  • Of these decisions, GAO found in favor of the protester only 72 times.
  • A protester had a 13% chance of an outright decision in its favor at GAO.

Based on the Annual Report, 13% is the lowest sustain rate for the last five fiscal years.

The GAO report further stated the most prevalent reasons for sustaining the protests during the 2014 fiscal year were the following:

  1. Failure to follow the evaluation criteria;
  2. Flawed selection decision;
  3. Unreasonable technical evaluation; and
  4. Unequal treatment.

“It is important to note that a significant number of protests filed with our office 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,” said Susan Poling, general counsel for the U.S. Government Accountability Office. “Agencies need not, and do not, report any of the myriad reasons they decide to take voluntary corrective action.”

In other words, the government is shifting its internal strategy. If the rash of protests are viewed as symptoms, then the position seems to be to treat the disorder. The unprecedented volume of protests has resulted in heightened awareness for the need for internal process improvements. Protest volume has become the gauge to discover what is necessary to run an unprotestable procurement process. The result remains to be seen.

To access the 2014 annual report, visit www.gao.gov/assets/670/667024.pdf.