Are protesters getting smarter?
By
Nick Wakeman
GAO's annual report shows protests increasing, but so is the rate of success, and that might mean that companies are finding substantive mistakes in government procurement decisions.
The rate at which bid protests were found to have merit by the Government Accountability Office soared during fiscal 2016, but a more interesting figure to look at is what GAO calls the effectiveness rate.
GAO ruled in favor of the protester in 22.56 percent of the 2,734 cases it closed last fiscal year, according to its annual protest report. That is significantly higher than the 12 percent in fiscal 2015 and 13 percent in fiscal 2014. But if you go back about 10 years, you’ll see sustainment rates of 27 percent in fiscal 2007 and 29 percent in 2006. More typically, you’ll see rates in the upper teens.
The low sustainment rate in fiscal 2015 and 2014 are the outliers if you look at the historical data.
But the more interesting and perhaps more significant number is the effectiveness rate, which includes the sustained protests as well as any corrective actions that agencies might have taken in response to a protest. Generally, a corrective action occurs when the agency pulls back a procurement to make some sort of adjustment.
This doesn’t mean that the protester is going to ultimately win the contract, but GAO considers a corrective action to be a form of relief for the protester.
That effectiveness rate hit 46 percent in fiscal 2016, up from 45 percent in 2015 and 43 percent in fiscal 2014 and 2013. In 2012, the rate was 42 percent. Going back about 10 years, the effectiveness rate was 39 percent in fiscal 2006 and 37 percent in 2005. Before that, it was steadily in the low 30 percent area.
So, what does that mean? Speaking on the Government Matters TV show last month, GAO managing associate general counsel Ralph White said he thought protesters are getting smarter and pointing out substantive issues inside these procurements.
I agree with his point. Better procurements would mean fewer protests.
Protests aren’t the problem; they are the symptoms of a problem. And the problem has gotten worse, it appears.
In fiscal 2006, GAO closed, 1,274 protests. As I mention above, fiscal 2016 saw 2,734 closed cases. That’s a huge increase.