DECLINE IN TOTAL PROTESTS IS COLD COMFORT TO IMPACTED PROGRAMS

The total number of federal contract protests filed at the Government Accountability Office (GAO) declined by 12% in FY’22, continuing a trend that has seen a reduction in such actions of nearly 40% since 2018.  That’s good news overall for contractors and government agencies that support smooth acquisitions and predictable business cycles.  It’s cold comfort, though, for high-profile acquisitions such as NIH’s CIOSP IV contract and GSA’s Polaris that have been plagued by continued protest actions.  In addition, anecdotal evidence suggests that more contractors are now taking protests to the Court of Federal Claims.  While that venue may be more expensive and time-consuming than GAO, the Court sometimes takes different positions that are more beneficial to contractors.  Regardless of venue, protests continue for high value contracts.  The reduction in total protests may be more attributable to fewer “frivolous” protests or enhanced debriefings offered by some government agencies.  When contractors do protest at GAO they have an “effectiveness rate”, where they obtain some sort of relief or remedial action, 51% of the time.  That’s not a bad return on their investment in protest costs.  Remedial action by the acquiring agency usually gives the contractor the ability to bid again another day on the same project, but with clearer terms and a better understanding of what the customer wants.  The actual “sustain” rate at GAO, though, was only 13%, 2% less than 2021.  As such, protestors that don’t obtain remedial action face a high bar to prove wrongdoing when a case goes through the full protest process.  The most common reasons for sustaining protests in FY’22 were unreasonable technical evaluations, flawed selection decisions and flawed solicitations.  Credible protests have a place in government acquisition as they often result in improved acquisitions.  Too many protests in specific areas, however, can boomerang and cause a program to be shut down so that no one wins.