Friday, August 2, 2019
GAO Bid Protests - Chances of Success
The Comptroller General's (i.e. Government Accountability Office or GAO) Office receives an average of eleven bid protests every day. Most of these are withdrawn before GAO needs to make a decision on the merits of the protest. In fiscal year 2018, three-quarters of these protests were withdrawn but that leaves about 600 or so cases that the GAO needs to decide upon (roughly 2.5 per day on average). What is the success rate for bid protests? Not too good. Only 15 percent are decided in favor of the bid protestor. Why so low of a rate? The short answer is that the Government, the contracting officers, have become much better over the years in justifying and documenting their award decisions and the GAO finds no bases to overturn those decisions.
With the GAO pumping out two and a half decisions a day, it would take a significant amount of time to follow and catalog those decisions. Perhaps there are firms in the business of representing bid protesters who do so. For the typical business who wants to represent itself in a bid protest case, it is a challenge to fully understand and look for precedents among all of these decisions.
Many challenges are based on the premise that the Government did not give adequate (or fair) consideration in rating the proposal submission against the stated evaluation factors or used unstated evaluation factors in its award decision. But these arguments rarely succeed because the GAO found that the solicitation instructions are clear. Clearly stated solicitation requirements are considered material to the needs of the Government and a proposal that fails to conform to material terms is unacceptable and may not form the basis for an award.
In cases involving unstated evaluation criteria, the GAO often cites a previous case (Northrop Grumman) where it held that "Although agencies are required to identify in a solicitation all major evaluation factors, they are not required to identify all areas of each factor that might be taken into account in an evaluation, provided that the unidentified areas are reasonably related to, or encompassed by, the stated factors.
Even though the chances of sustaining an appeal are slim, the cost (a couple of hundred dollars if you do it yourself), weighed against the potential rewards (a contract with profit) make it an easy decision for many to pursue the dispute process.