When we write about bid protest decisions on SmallGovCon, odds are that we’re writing about a GAO decision. For good reason: GAO is the most common forum protesters bring bid protests.
But SmallGovCon readers also know there’s another possible forum for protests: the Court of Federal Claims.
The GAO publishes an annual bid protest report with statistics about the number and effectiveness rate of protests, among other things. But until very recently, we didn’t have much hard data about the frequency and efficacy of COFC protests. The recently-released RAND bid protest report changed that, by including a deep dive on DoD bid protests at COFC.
Let’s take a look.
A procuring agency’s conduct in the course of evaluating proposals–and defending itself in four subsequent bid protests–was an “egregious example of intransigence and deception,” according to the Court of Federal Claims.
In a recent decision, Judge Eric Bruggink didn’t hold mince words, using terms like “agency misconduct,” “untruthful,” and “lack of commitment to the integrity of the process,” among other none-too-subtle phrases, to describe the actions of the Department of Health and Human Services. But Judge Bruggink’s decision is striking not only for its wording, but because it demonstrates the importance of good faith bid protests to the fairness of the procurement process, in a case where HHS unfairly sought to “pad the record” in support of a favored bidder–and would have gotten away with it were it not for the diligent efforts of the protester.
The GAO sustained 22.56% of protests decided on the merits in Fiscal Year 2016–nearly double the 12% sustain rate reported in FY 2015.
According to the GAO’s FY 2016 Bid Protest Annual Report, the GAO sustained 139 of the 616 protests decided on the merits (that is, cases where GAO actually reached a “sustain” or “deny” decision). The overall effectiveness rate for protesters–a combination of “sustain” decisions, plus the many cases in which agencies took corrective action in response to protests–was 46%, a slight increase over the prior fiscal year.
GAO bid protests were up 3% in Fiscal Year 2015–and protesters achieved a favorable outcome in 45% of cases.
In its Annual Report to Congress on its bid protest function, the GAO provided a look at how protesters fared during FY 2015, as well as the most common reasons protests were sustained.
The GAO sustained only 13% of bid protests in Fiscal Year 2014, down from 17% in the previous fiscal year.
But although some commentators might interpret the numbers as a sign that more non-meritorious protests were filed, the “effectiveness rate” (which measures sustain decisions plus voluntary agency corrective actions) remained steady at 43%. In other words, agencies are taking corrective action more frequently in response to GAO bid protests–but when the agency doesn’t take corrective action, the protester’s odds of success may be long.
GAO bid protests decreased slightly in Fiscal Year 2013, down 2% from the previous year. The “effectiveness rate” for protesters–a statistic that includes both formal GAO sustain decisions and voluntary agency corrective actions–was 43%, up slightly from FY 2012.
The GAO’s FY 2013 statistics are included in its January 2 Annual Report to Congress, which also includes a few other bid protest tidbits of note.