Bid Protest Successes Counter Agencies’ Frivolity Concerns
The continued high success rate for federal contract protests at the Government Accountability Office over the last five years, as shown in a recent GAO report, belies lawmaker and agency concerns about frivolous protests.
GAO protests were considered “effective” 44% of the time in fiscal year 2019, leading to either a sustained protest or corrective action by an agency, according to the GAO’s recent annual bid protest report. That is the exact same percentage as in 2018, and the effectiveness rate has varied by only a few percentage points across each of the past five years, the GAO noted.
And the high effectiveness rate for GAO protests suggests that those legislative and agency moves are driven by “a limited number of anecdotes that have an outsize effect on the perception” of frivolity, according to Blank Rome LLP partner Luke Meier, a vice chair of the American Bar Association’s Bid Protest Committee.
“Because when you look at the total numbers, it certainly doesn’t look like a system that has a lot of frivolous protests,” he said.
Not all figures in the GAO report lend themselves as easily to conclusions, however, with a sharp drop in the number of GAO protests filed in fiscal 2019 particularly open to interpretation, according to Carey, Meier and Bradley Arant Boult Cummings LLP partner Aron Beezley, also an ABA Bid Protest Committee vice chair.
“Bid Protest Successes Counter Agencies’ Frivolity Concerns,” by Daniel Wilson was published in Law360 on November 14, 2019.