Georgia Tech Procurement Assistance Center

2018 bid protests: Strong success rate at GAO continues while protest numbers spike in court

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Protesters remained active and fairly successful in their challenges to agencies’ procurement actions at the Government Accountability Office (GAO) in 2018, while protests at the Court of Federal Claims spiked.

According to Ralph White, Managing Associate General Counsel for Procurement Law at GAO, presenting at West’s Government Contracts Year In Review Conference, the number of protests at GAO held steady, despite the mid-year implementation of a $350 filing fee. A previous blog post with GAO statistics can be found here. White credited a number of competing factors with the steady numbers.  The filing fee, enhanced Defense Department debriefings and the suspension of one particularly active “nuisance protester” likely worked to reduce the number of protests, while the highly competitive procurement environment, increased DoD spending, an increase in the dollar threshold for GAO’s task order jurisdiction and the steady but significant success rate for protesters worked to increase the number of protests.

That success rate – the number of protests where the protester sees some kind of remedy, whether from a sustain decision or agency corrective action – remains around 44 percent, similar to previous years, White said. For the third consecutive year, not a single agency refused to follow a recommendation issued by GAO.

The Court of Federal Claims saw a marked increase in protests in 2018 – 179, compared to 129 in 2017, a 40 percent increase.

Keep reading this article at: http://www.mondaq.com/article.asp?articleid=785248

Bid protest corrective action: You can’t always get what you want

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Every government contractor that files a bid protest has the same goal in mind – corrective action.  The agency made a procurement error and changes need to be made.

us-court-of-appealsBut just because the agency takes corrective action does not mean it will be the corrective action your firm wants.  Contractors should take the time to consider the possible outcomes of a successful bid protest before filing.

Take, for example, the recent U.S. Court of Federal Appeals decision denying a protest over corrective action.  In that case, an unsuccessful offeror successfully protested a United States Transportation Command non-temporary storage contract.  In response to the protest, the agency took corrective action and started the process of re-evaluating all offerors in order to make a new award decision.

But this was not the corrective action the protestor expected.  Because the protest argued that the original awardee’s proposal was technically deficient, the protestor wanted the government to cancel the first award and make a new award decision (in its favor) without further evaluation.

The Court rejected the idea that a protester can limit the agency’s authority to correct evaluation errors.  To the contrary, the decision holds that it is within the agency’s discretion to review its prior conclusions and conduct a re-evaluation (provided that the new evaluation conforms to the solicitation and is fair to all offerors).

So is the takeaway that your firm shouldn’t file a protest unless it knows it will receive the award?

Keep reading this article at: http://www.mondaq.com/article.asp?articleid=531868

Trend? GAO increasingly finding in favor of protesters

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Sustained!Through the first 5 months of FY 2016, GAO is sustaining protests at a 22% clip — a far higher rate than in recent years.

GAO’s sustain rate considers only those protests that go to a decision on the merits, and reflects the percentage of those protests where GAO finds in favor of the protester. In recent years, GAO’s sustain rate has generally declined.

But in the same period, protesters’ overall rate of success at GAO has remained quite high. GAO’s “effectiveness rate” — the percentage of protests where the protester obtains relief through either a favorable GAO decision or voluntary agency corrective action — has remained above 40% for nearly a decade. Last year, it was 45%.

Keep reading this article at: https://www.insidegovernmentcontracts.com/2016/03/gao-protest-sustain-rate-on-the-rise-2/ 

Protest lessons learned: When to challenge corrective action

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For Government contractors, it can be a frustrating experience to have your hard-earned contract award sidetracked by a protest – particularly if that protest includes a mandatory performance stay.  More frustrating still is when the agency pulls the award altogether by deciding to take corrective action and re-open the competition.

FY 13 Bid Protest Stats - GAOThis is no time to be passive!  If your contract award is under attack, contractors should get involved and intervene in the protest.  This advice takes on particular importance when corrective action is proposed – the window to challenge a renewed competition closes on the date when revised proposals are due.

Government contractor NVE Inc. learned this lesson the hard way on a recent $70 million janitorial contract for the Navy.  After its initial award was the subject of multiple rounds of protests, the agency made the decision to reopen the competition by engaging in discussions with all offerors.

Keep reading this article at: http://www.mondaq.com/article.asp?articleid=420284

See frequently asked questions about bid protests at: http://www.gao.gov/legal/bid-protests/faqs 

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