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.
RAND’s report answers several major questions relating to COFC protests.
How many protests are filed at COFC? From the beginning of 2008 through mid-2017, there were approximately 950 bid protests filed at the Court. These protests were split fairly evenly between DoD protests and non-DoD protests. Although this seems like a lot, the report shows that, based on the total number of acquisitions over this same time period, the frequency of protests at COFC is similar to that at GAO: less than 0.025% of contracts are actually protested. Or, as the report put it, “very few procurements are protested at COFC.”
Who is filing these protests? It would be logical to assume that large businesses are more likely to incur the expense of filing a COFC protest. Not so: the top 11 DoD contractors (by revenue) filed just ten protests between 2008 and 2016—and seven of these were filed by one company. Given this dearth, RAND concludes that “protests at COFC are not part of standard business practice at these firms.” Instead, RAND found that 58% of COFC protests are filed by small businesses.
Which agencies are protested the most? Of DoD agencies, the Army was most frequently protested at the COFC (about 41 percent of all DoD protests at the COFC). The Defense Logistics Agency was the least-protested (only about 9 percent of DoD protests at the COFC).
Which procurements are being protested? Only the largest solicitations out there, right? Surprisingly not. Although the size of contracts protested varies greatly, the average value of protested procurements is only about $1.1 million. A surprisingly large number of COFC protests, moreover, were for contracts valued less than $100,000—about 3.5%.
How long do COFC protests take? Unlike GAO, the Court doesn’t have a hard deadline to resolve protests. Even still, the majority are resolved very quickly: according to RAND, about 75% of COFC protests are resolved within 150 days. The average resolution took 133 days, while the median was 87 days. RAND was quick to caution, however, that some protests may take “considerably longer” depending on the issues involved and whether the Court’s decision is appealed.
Are COFC protests effective? Unfortunately for potential protesters, the RAND report has some discouraging information: out of 459 DoD protests analyzed, only 9% were sustained by the Court. Disappointed protesters appealed the Court’s decisions in about 12% of these protests and, of those, roughly one-fifth eventually earned a sustain.
Does this data suggest that the COFC is hostile to bid protests, or that protesting to the Court isn’t worth it? Absolutely not. Just like with GAO protests, the Court will sustain a protest if it determines the agency made a prejudicial error in its evaluation.
In my opinion, this comparatively-low sustain rate instead confirms the need for better communication between offerors and agencies, including more-thorough debriefings. It’s no secret that providing more information to offerors will reduce protests—including protests before the Court. In fact, we often talk to disappointed offerors who are considering protests mainly because the agency hasn’t adequately explained its evaluation decisions.
It’s also worth noting that many COFC protests are filed after the protester has lost at GAO. (The reverse isn’t true: a losing protester at the Court cannot turn around and file at GAO). This means that some of the protests on the Court’s docket have already been reviewed and rejected by GAO—and thus, the overall strength of the COFC protest pool may be weaker than at GAO.
Finally, as we’ve pointed out various times here at SmallGovCon, the key metric from a protester’s perspective isn’t the sustain rate, but the effectiveness rate—that is, the combination of “sustain” decisions plus voluntary agency corrective actions. At GAO, the effectiveness rate of protests has been above 40% for years, even though the sustain rate is much lower (17%, for example, in Fiscal Year 2017). Corrective actions happen at the COFC too, but the RAND Corporation didn’t have data on how often. As with the GAO, it would be a mistake to evaluate the effectiveness of COFC protests based solely on the sustain rate.
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RAND’s report provides interesting—and surprising—information relating to COFC protests. In the right circumstances, these protests can be an important tool for government contractors (including small businesses) to earn a contract award.
Questions about this post? Or need help with a government contracting legal issue? Email us or give us a call at 785-200-8919.