Borrowing from Shakespeare’s Hamlet lets me address a question we are frequently asked:
Are GAO protests worthwhile?
Protesting a contract award decision is a fundamental right exercised by government contractors who feel the Government’s decision was incorrect or inappropriate.
In 2019 the GAO received 2,071 protests. 587 resulted in GAO decisions on the protest’s merit and of those only 13% were sustained by the GAO. A higher amount, around 31% of filed protests, resulted in the protester gaining some form of relief, typically from agency voluntary corrective action. That’s a total ‘effectiveness’ rate of 44%. (Note 1)
How does that compare with history? A 2015 report by the Congressional Research Office noted that between 2001 and 2010 protest filings increased by 125% and between 2010 and 2015, the number of protests had leveled to between 2100 and 2300 annually. The so-called ‘effectiveness’ rate during 2010 and 2015 hovered between 41% and 44%. (Note 2)
So, protests seem to have leveled off and the ‘effectiveness’ rate is consistent. But, even with that 44% effectiveness rate, are GAO protests worthwhile?
If an agency action was truly outside the bounds of propriety, such as when the Government failed to award based on its published selection criteria or created an uneven playing field (e.g., shared insider knowledge), then protesting is a proper course of action.
However, the GAO’s results indicate that 56% of the time a protest is denied or dismissed on its merits, indicating that the arguments put forth were not persuasive or that the Government acted properly. Further, some of the 31% leading to voluntary correction only return the situation to a proper course but do not alter the Government’s ultimate decision. So, the 44% ‘effectiveness’ rate is misleading.
If your company is considering a protest because you simply did not like the Government’s decision, think twice about your inclination. Win or lose, a GAO protest stops contracting activity cold and impacts the Government’s ability to do its job. Schedules are set back, deadlines are missed, and funding goes unobligated. Human nature being what it is, protests often create tension between a contractor and the Government. Occasionally, these tensions will affect relationships, perhaps even to the point of impeding one’s ability to win.
Borrowing from Shakespeare again – the better part of valor is discretion. Often, energy is better spent on ensuring you thoroughly understand the Government’s requirements and objectives ahead of time. Do your best to create a positive relationship before a solicitation is issued and submit a fully compliant and compelling proposal up front. Then, plan to accept the outcome. This way you can avoid the need to consider a protest at all, absent a clear indication that something is amiss.
Contact us to help you prepare for your next proposal. Or let us help you analyze recent losses to better understand how to improve your win rate. Either way, we can help.
Arthur Schwope on said:
Nicely written, Jim. Also important are constructive comments and clarification questions (without arrogance and hubris) during once the solicitation is on the street. Sometimes they can result is modifications to the solicitation that are favorable to the bidder who so presents those comments/questions. The government doesn’t always get the RFP correct the first time. This process can actually begin at bidders’ conferences, industry days, with draft RFPs, etc. And could include attempting to convince the government that a particular contract could be a small business set-aside. But you know all that.