We represent and assist our clients in bid protests at each available forum, as both protesters and as intervenors in defense of contract awards. The federal bid protest system includes the right to file a bid protest directly with federal agencies, as well as with the GAO, which saw nearly 2,800 cases filed in FY 2016, and the U.S. Court of Federal Claims, which receives about 120 bid protests each year.
When pursuing a bid protest, offerors are more likely to receive relief through corrective action (for example, an agency’s decision to re-evaluate a proposal, permit revised proposals or reinstate a proposal into a competitive range) than a sustained decision. According to GAO’s FY 2016 annual report, the “effectiveness rate” of bid protests at GAO was 46 percent, a figure that includes corrective action by agencies. Depending on the agency’s actions taken, the protester may or may not consider the ultimate outcome to be a victory – but a protest resulting in corrective action does give the protester a chance to have its arguments heard, and often, its proposal reconsidered by the agency.
GAO’s annual report includes a summary of the most prevalent grounds for sustaining protests during the preceding year. During FY 2016, the most common reasons cited for sustained protests were unreasonable technical evaluations, unreasonable past performance evaluations, unreasonable cost or price evaluations, and flawed selection decisions. This illustrates that while GAO will not sustain a protest based on “mere disagreement” with an agency evaluation, it will fairly consider the protester’s arguments based on an unreasonably flawed evaluation or selection decision.