Government contractors know the odds on GAO bid protests – they are not all that good. Even with a noticeable uptick, the statistics reveal that less than 1/4 (about 23%) of all bid protests were sustained in FY 16. Even factoring in voluntary agency corrective action, the odds of a positive outcome are still worse than a coin flip (about 46%).
So, the question is how can you make those odds work for your business?
First, pick the right battle. As I discuss in The Practical Guide to Filing (and Winning) GAO Bid Protests, certain kinds of cases tend to fare better at the GAO. These cases include pre-bid solicitation errors and obvious evaluation missteps by the government. More nuanced issues – or cases requiring in depth legal analysis – are better suited to the Court of Federal Claims (COFC).
The difference largely lies in the mission of each venue. The GAO’s trademark is speed and efficiency. A contractor can obtain a mandatory stay of contract award or performance just based on filing a timely protest – so the GAO’s stated goal is to resolve all protests within 100 days of filing. Protest administration at the COFC, on the other hand, is more akin to traditional litigation.
Each venue offers pros and cons that can vary on a case-by-case basis. So, contractors should certainly think before mechanically filing a protest (because “that’s what we always do”).
The other way to beat the odds at GAO is to avoid common contractor pitfalls. Even though some areas of procurement administration seem (and probably are) inequitable – that does not necessarily mean they will support a protest.
For example, in a recent decision, GAO rejected a contractor’s protest related to its adjectival ratings. The contractor argued that the agency conducted an improper best-value tradeoff analysis where two offerors received identical adjectival ratings – but the agency still elected to award to the higher-priced offeror.
GAO disagreed, finding that the contractor’s arguments focused too narrowly on the assigned ratings. The record showed that, within those ratings, the agency conducted a proper tradeoff analysis, including documenting the technical merits of the proposals against their respective offered prices. In the end, the agency determined that the technical benefits of the awardee’s proposal warranted the government paying the premium price.
The lesson for contractors is not to rely too heavily on adjectival ratings. Particularly when it comes to best value procurements, the government has significant discretion to put a finer point on proposals with the same overall rating.
When this situation arises, contractors are well-served to thoroughly explore the agency’s best value decision during the required post-award debriefing. If the debriefing reveals holes in the analysis, then a protest could be worth the time and effort. On the other hand, if the best value decision is properly documented, a protest based only on adjectival ratings is likely not worth the investment.
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