Every year, the Government Accountability Office reports to Congress several statistics relating to GAO’s bid protest function. The big news this year is that the “Sustain Rate” — the percentage of protests that resulted in a GAO decision granting the protest — nearly doubled in FY 2016 (22.56%) compared to FY 2015 (12%). In absolute terms, GAO sustained 139 protests in FY16 compared to only 68 in FY15.
So, what do these numbers really mean for protesters’ chances?
Not too much, it turns out. Another statistic, which doesn’t grab headlines the way the “Sustain Rate” does, is, in some respects, more telling. We refer to the “Effectiveness Rate.” GAO explains that the “Effectiveness Rate” is the percentage of protests in which a protester obtains some form of relief from the agency, either as a result of voluntary agency corrective action or GAO’s sustaining the protest. Note that “voluntary corrective action” includes cases in which the agency figures out on its own that it may have made an error in the procurement as well as cases in which GAO engages in “outcome prediction” and tells the agency that, if GAO writes a formal decision, that decision likely will be decided against the agency.
The “Effectiveness Rate” in FY16 was 46%, while in FY15 it was 45%. In fact, the Effectiveness Rate has consistently hovered in the low to mid-40s (percentage-wise) for many years. Thus, protesters’ chances of getting some form of relief were about the same last year as they have been.
So, what does a higher Sustain Rate mean? It means that agencies are taking corrective actions in a smaller percentage of cases, choosing instead to wait for a GAO decision. (This conclusion is derived by subtracting the Sustain Rate from the Effectiveness Rate, which yields 23.44% last year compared to 33% the year before.) That, in turn, could mean that protesters are spending more in legal fees to get to the finish line.
Which leads to the obvious question: Should I protest?
The answer to that question depends on the particular facts. What are the alleged errors? How much is involved? How important is the contract to the protester? Is the protester the incumbent? Is the protester a small business (which may be able to recover most of its attorney fees after a successful protest)? If the protest is sustained would the protester have a good opportunity to win the contract? As always, the merits of a potential protest (as well as other benefits, such as a stay) should be carefully weighed against the costs.
GAO’s annual report may be found at http://www.gao.gov/assets/690/681662.pdf.