Contractors who are thinking about filing a bid protest generally have one overriding question: What are the odds that I’ll win my protest? Of course, the odds of winning will depend upon a number of factors, including the basis for the protest and the facts that support the protest.
Recently, the Government Accountability Office (GAO) released its annual report to Congress providing data on protests that were filed with GAO during Fiscal Year 2019 as compared to Fiscal Years 2015-2018. While GAO’s report is not an indicator of the success of any specific protest, it does provide some interesting insight. GAO reported:
- The most prevalent reasons for sustaining protests in Fiscal Year 2019 were: (1) unreasonable technical evaluations; (2) inadequate documentation of the record; (3) flawed selection decisions; (4) unequal treatment of offerors; and (5) unreasonable cost or price evaluations.
- There were 2198 cases filed in Fiscal Year 2019. There were 2,071 protests, 60 cost claims, and 67 requests for reconsideration. This was a decrease of 16% from Fiscal Year 2018.
- GAO’s effectiveness rate (e., the rate at which the protester obtained some relief either as a result of voluntary agency corrective action or GAO sustaining the protest) was 44%. This is the same effectiveness rate as Fiscal Year 2018. Over the last five fiscal years, GAO’s effectiveness rate has ranged from a high of 47% in Fiscal Year 2017 to a low of 44% in Fiscal Years 2018 and 2019.
- Only 587 cases resulted in a decision on the merits. Of those 587 cases, only 77 or 13% were sustained. This is a slight decrease from the sustain rate of 15% in Fiscal Year 2018. Over the last five fiscal years, GAO’s sustain rate has ranged from a high of 23% in Fiscal Year 2016 to a low of 12% in Fiscal Year 2015.
- GAO only engaged in Alternative Dispute Resolution (ADR) in 40 cases – a significant decrease from previous fiscal years. The ADR success rate, however, was 90%.
- GAO held a hearing in only 2% or 21 cases. This actually is an increase from Fiscal Year 2018. In that fiscal year, GAO held hearings in 0.51% or 5 cases.
Below is GAO’s Bid Protest Statistics for Fiscal Years 2015-2019.