GAO Bid Protests: Trends and Analysis
Released: 2015-07-21T00:00:00

Introduction

Bid protests of federal government contracts filed with the Government Accountability Office (GAO) have received congressional scrutiny due to high-profile protests of awards, including protests filed against a $1.6 billion Department of Defense (DOD) contract for cloud services (protested by Amazon, Citrix Systems, and other companies); a contract to provide security background checks for the Department of Homeland Security (protested by US Investigations Services), and a NASA contract to develop crew space transportation capability (protested by Sierra Nevada Corp.). The increasing number of protests and the impact protests can have in delaying contract award or performance have raised concerns regarding the impact of protests on agency operations, especially in DOD. Both the House- and Senate- passed versions of the FY2016 National Defense Authorization Act seek to require a report on the GAO bid protest process.

This report is one of two providing Congress with background on the GAO bid-protest process. It analyzes (1) trends in bid protests filed with GAO, (2) why companies protest, (3) the impact bid protests have on acquisitions, (4) the most common grounds for GAO to sustain a protest, and (5) trends in bid protests filed against DOD. Its companion report, CRS Report R40228, GAO Bid Protests: An Overview of Time Frames and Procedures , by [author name scrubbed] and [author name scrubbed], provides background and an overview of the time frames and procedures in a GAO bid protest.

Background

The Federal Acquisition Regulation (FAR) regulates how the federal government acquires goods and services by implementing statutes and codifying uniform policies and procedures for the executive branch. The intent of the FAR is to help guide the federal acquisition system to "deliver on a timely basis the best value product or service to the [government], while maintaining the public's trust and fulfilling public policy objectives." One of the guiding principles of the FAR, as set forth in the Competition in Contracting Act ( P.L. 98-369 ), is to promote competition for government contracts.

In an effort to protect the integrity of the procurement system, the FAR and federal law provide mechanisms for contractors to object to (protest) contract awards. Generally, any interested party who believes that a contract has been awarded unlawfully can seek relief and contest the award by filing a protest. GAO has been a forum for resolving protests for 90 years and is the only administrative institution with the authority to hear protests across the federal government; the Court of Federal Claims (COFC) is the only judicial forum for hearing such protests. Companies can also file a protest with the agency awarding the contract, and under certain circumstances, with specialized entities, such as the Small Business Administration or the Bureau of Indian Affairs. GAO, however, is the primary location for resolving government contract protests.

GAO Bid Protests

GAO may generally hear protests alleging illegalities or improprieties in solicitations, cancellations of solicitations, awards, or proposed awards of contracts. The procedures for bringing and conducting GAO protests are designed to ensure "the inexpensive and expeditious resolution of [bid] protests" to "the maximum extent practicable." Protesters need not file formal briefs or technical pleadings, can represent themselves, and can have protests decided without hearings. All protests are required to be resolved within 100 calendar days of being filed. The filing of a GAO protest often results in an automatic stay of contract award or performance that can interrupt agencies' procurements for as long as the protest is pending.

GAO may dismiss, deny, or sustain a protest. A dismissal or denial allows the agency to proceed with the challenged procurement. A sustained decision, in contrast, generally disrupts the procurement because GAO will issue recommendations to the agency about the challenged procurement—such as re-competing the contract or amending the existing solicitation. GAO's recommendations are not legally binding upon the agency, but the agency must notify GAO if it does not fully implement GAO's recommendations. Agencies almost always comply with GAO recommendations on protested procurements. Protesters who are disappointed with GAO's decision can seek reconsideration or effectively appeal GAO's decision by filing a protest with the Court of Federal Claims.

Number of Bid Protest Cases Filed With GAO

In FY2014, GAO received 2,561 cases, an increase of 5% over the previous year and an increase of almost 125% since FY2001. In FY2007, Congress expanded GAO's jurisdiction to include protests of some task/delivery orders, A-76 contracts, and Transportation Security Administration contracts. Excluding protests from expanded jurisdiction, from FY2001 to FY2014, protests increased by almost 100% (see Figure 1 ). However, over the last four years, the number of protests has remained relatively constant (2,206 in FY2011 vs. 2,269 in FY2014).

Most protests are dismissed, withdrawn by the protester, or settled prior to GAO issuing an opinion. Since FY2001, on average, GAO issued an opinion on 22% of cases. When GAO issued an opinion, on average, the protest was sustained 20% of the time. As a result, from FY2001 to FY2014, approximately 4% of all protests filed were sustained (see Figure 5 ). However, this data may overstate the number of procurements with sustained protests, as a single procurement can have multiple protests sustained (see below, " Number of Government Procurements Protested ").

In addition to GAO sustaining a protest, protesters can also obtain relief when a contracting agency voluntarily acts to correct the allegation charged in the protest. For example, if a protester claims that a request for proposal did not accurately describe the contract requirements, the agency could voluntarily amend the request for proposal. Many analysts consider the increasing willingness of agencies to voluntarily take corrective action as one of the most significant trends in bid protests. In many cases, voluntary action by an agency could indicate that the agency believes that a given protest has merit. However, there may be instances when an agency takes corrective action even when it believes that the procurement was done properly (for example, meeting with the protesting party to clarify why the protester lost the competition could be corrective action).

The percentage of protesters obtaining relief—either through a protest being sustained or voluntary action taken by an agency—is called the effectiveness rate. From FY2001 to FY2014, the effectiveness rate of GAO protests grew from 33% to 43% (see Figure 2 ). Over the last five fiscal years the effectiveness rate has remained relatively stable, averaging 42%.

Some observers believe that the increase in the effectiveness rate is a result of the predictable nature of GAO opinions. If GAO decisions are sufficiently predictable to allow agencies to determine how GAO will rule in a given situation, agencies may be more likely to voluntarily take corrective action than wait for GAO to sustain a protest. Under this theory, the effectiveness rate is a rough measure of the number of protests that have actual or potential merit.

Some government officials and analysts have suggested that agencies usually take corrective action when GAO has indicated its intent to sustain a protest. The data does not support this contention. According to GAO

The vast majority of agency corrective action occurs before agencies have submitted their reports responding to the merits of the protest. Prior to receipt of the agency report, GAO attorneys are unable to assess the merits of a protest and therefore do not provide parties with outcome prediction alternative dispute resolution. Accordingly, where the vast majority of agency corrective action is occurring prior to the submission of the agency report, the corrective action is self‐initiated by the agencies, without GAO prompting or involvement.

Others believe that corrective action often reflects agencies' risk-averse efforts to avoid even the potential of a protest being sustained. These observers could argue that the high likelihood of protests being resolved through voluntary agency corrective actions encourages companies to file protests. These analysts could also argue that if agencies allowed more cases to be decided on the merits (only taking voluntary corrective action where there is clear precedent that GAO would sustain the protest), companies might be less inclined to file protests.

Number of Government Procurements Protested

Bid protest data reported to Congress, while an accurate reflection of the work load assumed by GAO in its function as a forum for bid protests, over-represents the number of procurements protested. In instances where more than one protest is filed in connection to a single procurement, each protest is counted separately and assigned a distinct tracking number. The data GAO provides to Congress also includes cost claims and requests for reconsiderations.

Adjusting for cost claims, requests for reconsideration, multiple filings on a single procurement, and expanded jurisdiction, in FY2014, GAO's workload consisted of 2,269 filings, but only 2,135 procurements were protested. From FY2001-FY2014, the number of procurements protested tripled, from some 700 to over 2,100 (see Figure 3 ).

Number of Bid Protests Sustained by GAO

In recent years, as the number of protests has increased, the number of bid protests sustained by GAO has trended higher (see Figure 4 ). However, the percentage of overall protests sustained by GAO has trended lower (see Figure 5 ). This data seems to indicate that the increase in the number of protests sustained is a reflection of the increased number of protests filed, not an increase in the rate of government error.

Changing Trends in GAO Protests: Comparing Rate of Protests to Rate of Obligations

A closer look at the data indicates a significant shift in bid protest trends over the last six years (see Figure 6 ). From FY2001-FY2008, total government procurement spending, adjusted for inflation, increased at a faster rate (over 100%) than the number of protests filed (35%). This trend reversed itself in FY2008: from FY2008-FY2014 total government spending, adjusted for inflation, decreased 25% while total protests increased 45%. This data indicates that, when compared to the rate of government spending, bid protests decreased from FY2001-FY2008, and increased from FY2008-FY2014.

The rate at which GAO sustains protests has also seen a significant shift in recent years. From FY2001-FY2008 GAO sustained protests in 22% of their opinions; from FY2009-FY2014 that number dropped to 17% (see Figure 7 ). In FY2014, 13% of protests filed were sustained, the lowest rate since before 2001. This data seems to indicate that while companies are more likely to file a bid protest, they are somewhat less likely to win a bid protest.

Even when GAO sustains a protest, the protesting company is not guaranteed to win the contract in question. According to one analysis, out of some 1,500 procurements protested in FY2010, GAO sustained a protest in 45 procurements; out of those 45 procurements, in 8 instances the protesting party went on to win the contract. In other words, of the original 1,500 procurements protested, GAO sustained a protest and the protesting party went on to win the contract 0.5% of the time. However, this figure does not account for cases where the agency took corrective action prior to GAO issuing an opinion. Taking into account agency corrective action, one observer estimated that a "protester has a 12% chance of ultimately winning a contract award as a result of its protest."

Even though protests have increased significantly over the last few years, the number of protests filed in FY2014 was not very high by historical standards (see Figure 8 ). From FY1986-FY2000, GAO received on average over 2,200 protests annually.

Why Companies File Bid Protests

Media reports discussing the increase in bid protests over the last few years have fueled the debate over why the number of protests is rising. Generally, companies file a bid protest based on the belief that the government has made a material error in the bidding process. According to analysts, the most common government errors cited in protests are poorly written or vague contract requirements, failure to follow the process or criteria laid out in the request for proposals, and failure to adequately document government findings. Some analysts have attributed these errors to an inexperienced or insufficiently trained acquisition workforce.

In contracts that are complex, have elaborate requests for proposals, or have poorly written requirements, contractors may not always understand the basis upon which awards were made. Not understanding the award criteria can lead contractors to think they were treated unfairly or that an error was made in the award process. A number of analysts and government acquisition officials have attributed confusion on behalf of contractors, in part, to poor communication between government and industry, including agencies not adequately debriefing losing bidders after a contract award. When agencies do not adequately debrief losing bidders, the losing companies may file a protest to determine why they lost the competition. To the extent that poor communication between government and agencies result in bid protests, improving agency communication, clarity, and debriefs could result in fewer protests.

Many analysts have argued that the increase in the value of individual contracts, longer periods of contract performance, policy trends to insource more work, and decreased defense spending make contractors more desperate to win each contract—and more willing to protest an award. For example, an incumbent contractor might file a protest with GAO to trigger an automatic stay of award. If a stay of award is granted, the incumbent may get a temporary bridge contract, thereby extending the time it has to work on the contract and generate revenue. Other reasons companies may protest include hoping to influence the outcome of future competitions (akin to "yelling at the referee"); proving to shareholders and executive managers that they are doing everything they can to win contracts; or even seeking to hurt the competition by delaying a contract award. To the extent that decreased defense spending and consolidation of contracts drives protests, as defense spending and the industry landscape stabilize, the number of protests may begin to decrease in the future.

Does the Threat of a Protest Drive Agency Behavior?

The specter of a company filing a bid protest appears to influence agency behavior—sometimes positively and sometimes negatively. Fear of protests may motivate agency officials to conduct more rigorous market research, hold a competition instead of awarding a sole-source contract, or conduct a more thorough and fair competition. Fear of a protest could also prompt officials to try to structure a contract in a manner they deem less likely to be protested, such as using lowest price technically acceptable (LPTA) as an award criteria instead of a best-value competition (when best value may be more appropriate).

According to a survey of acquisition professionals conducted by Lone Star Analysis, government procurement officials often spend significant time and effort to avoid protests, resulting in procurements that are more complex, cost more (to both the government and bidders), and take longer to award. A majority of respondents to the Lone Star survey believes that in most acquisitions

Stringent rules restrict procurement package preparation to avoid protest, rather than improve acquisition; Pre-proposal discussions are curtailed to avoid the appearance of improper discussions; Post selection debriefings are "dumbed down" to avoid protest; Both Lowest Price Technically Acceptable and Multiple Award contracts are used to avoid protests; Legitimate sole source providers are re-competed to avoid protests; and Important requirements are not used as award criteria to avoid protests.

Common Grounds for GAO Sustaining Bid Protests

Knowing what aspect of the contracting process most often results in bid protests being sustained could help agencies focus on improving those aspects of contracting. Such improvements could help reduce the number of protests being filed and sustained. According to GAO, in FY2014, the most common grounds for sustaining protests were a result of agencies

not adhering to established evaluation criteria, issuing flawed selection decisions, making unreasonable technical evaluations, and not treating all bidders equally.

Another common ground for sustaining protests is agencies failing to maintain adequate documentation. According to Gary Allen, a Senior Attorney in GAO's Procurement Law Division, Office of the General Counsel,

One of the big issues that we have at GAO are documented records. Our responsibility or review of protests is not to reevaluate a procurement but is to see... whether the contracting office or whoever the source selection authority is, is reasonable in their decision and the only way we can make that determination is when there is a documented record.

Are Bid Protests Delaying Contracts?

Under the Competition in Contracting Act (CICA), the mere filing of a bid protest with GAO may result in an automatic stay, or postponement, of contract award or performance. When a protest is filed prior to award, an agency may not award a contract until the protest has been resolved. Similarly, when a protest is filed after award, the agency must withhold authorization of performance under the contract while the protest is pending. If performance has begun, the agency must "immediately direct the contractor to cease performance under the contract" until the protest is resolved.

Congress mandated the stay of award in 1984 to ensure that in cases where GAO found that procurement law or regulation was violated there would be sufficient opportunity for agencies to remedy the violation. As the report of the House Committee on Government Operations stated in 1984, Congress believed

a cardinal failing of this bid protest process [is that] GAO has no power to stop a contract award or contract performance while a protesting is pending. As a result, agencies usually proceed with their contracts knowing that they will preclude any possibility of relief simply by delaying the bid protest process.

If an agency believes that delaying a contract will have severe consequences, CICA provides grounds for agency overrides of automatic bid-protest stays. According to CICA, agencies may override stays when there are "urgent and compelling circumstances" that impact the interests of the United States and when performing the contract is in "the best interests of the United States."

To ensure timely resolution of protests, Congress required GAO to resolve protest within 100 calendar days of the protest being filed. According to GAO officials, GAO has never failed to complete its work within the required time period. In many cases the protest is resolved much earlier, most often as a result of the protesting party withdrawing the case or GAO dismissing the protest. In addition, GAO can dismiss protests that do not meet filing guidelines and can issue a summary decision on a protest at any time.

According to GAO, in FY2014, protests were resolved on average within 39 days. More than half of all protests were resolved before an agency filed a report with GAO responding to the protest (through the case being dismissed or withdrawn by the protester). These cases were resolved on average in 21 days. This data, however, can be somewhat misleading.

Much of the impact a protest can have on a program's schedule occurs outside of the period between when a protest is filed and the case is closed by GAO. Agency actions to address the complaint in a protest—either through voluntary action or because a protest was sustained—can delay contract awards for weeks or months, costing millions of dollars and delaying delivery of goods and services. The Next-Generation Jammer technology development contract was reportedly delayed by six months when GAO sustained a protest and recommended that the Navy re-evaluate proposals.

DOD Contracts and Bid Protests

The number of bid protest cases against DOD has increased from approximately 600 in FY2001 to 1,200 in FY2014, an increase of 100% (see Figure 9 ). Most protests against DOD were dismissed, withdrawn by the protester, or resolved prior to GAO issuing an opinion. GAO issued an opinion on 23% of protests. In cases where GAO issued an opinion, protests were sustained 11% of the time. From FY2001 to FY2014, on average 4% of protests filed against DOD were sustained by GAO (see Table A-1 for protests filed and sustained, by service).

Just as the number of protests filed against DOD has increased, the number—and value—of contract actions signed by DOD has also increased (see Figure 10 ). According to the Federal Procurement Data System, between FY2001 and FY2014, after adjusting for inflation, the value of total DOD contract obligations increased 45% compared to an increase of 100% in the number of protests filed in the same period.

In recent years, the percentage of protests sustained against DOD has decreased (see Figure 11 ). From FY2001-FY2008, GAO sustained on average more than 5% of all protests filed; from FY2009-FY2014, GAO sustained approximately 2% of all protests filed.

DOD procurements are less likely to be protested than those of the rest of government. From FY2008 to FY2014, on average, DOD accounted for almost 70% of total government contract obligations but about55% of total protests against the federal government (see Figure 12 ).

Protests against DOD are also sustained at a lower rate than the rest of government. From FY2008-FY2014, 2.5% of all protests against DOD were sustained by GAO, compared to over 5.0% of all protests against federal civilian agencies. Protests against civilian agencies are also growing at a faster rate than protests against DOD. From FY2001-FY2014, the number of DOD procurements that were protested increased 170% (from 421 to 1,138) compared to an increase of 260% (from 279-997) for civilian agencies (see Table 1 ).

Appendix. Bid Protests Filed Against DOD