The Government Accountability Office (“GAO”) recently released its bid protest statistics for fiscal year 2010. As we predicted earlier this year, a record number of 2,269 protests were filed in FY 2010, representing a 13% increase over the 1,989 protests filed in FY 2009 and a 26% increase over the 1,652 protests filed in FY 2008. The percentage of merit decisions (those cases that are not dismissed for lack of jurisdiction, failure to follow the GAO’s exacting timelines or because the contracting agency grants the relief sought by the contractor) on protests increased by 29% from FY 2009, and the percentage of protests sustained also increased by 25% from FY 2009.
As we previously reported, this increase in the number of protests may reflect contractors’ desires to preserve opportunities for government business in tight economic times. A recent report to Congress by the Congressional Research Service also lists an increase in overall government contract spending as another possible explanation for a corresponding rise in bid protests. Fortunately for contractors, an increasing number of protests are being decided on their merits, and a greater number of merit-based decisions are being sustained.
The number of protests resolved by means of alternative dispute resolution (ADR) also bears mention. Although these protests only typically represent around 8% of total resolved protests, they enjoy, on average, a success rate of 94%, a rate 56% greater than protests resolved through the traditional process. While each protest is unique, this data reflects the federal governments’ increased willingness to utilize alternative means of dispute resolution to resolve protests.
The Congressional Research Service indicates that the most common grounds for the GAO sustaining bid protests are 1) agencies’ lack of maintaining adequate documentation; 2) errors made by contracting officers in conducting discussions with offerors; 3) flaws in cost evaluations; and 4) agencies’ not adhering to established evaluation criteria. The bid protest process – already a uniquely cost-effective way to challenge the award of a federal government contract – can be a contractor’s best chance at ensuring a fair chance to bid on business opportunities with the federal government.
The complete data on 2010 protests is available online at http://www.wifcon.com/protestsgaostat.htm. The Congressional Research Service Report, “GAO Bid Protests: Trends, Analysis, and Options for Congress” can be found here. For more information please contact Tim Connelly at [email protected] or 612-236-0160.