Five ways to win your bid protest
By
Nick Wakeman
GAO's annual report on bid protests offers up the primary reasons companies win their protests, but victory is still a long shot.
Do you want to win your bid protest? Here are five areas where you’ll most likely find success:
- Unreasonable technical evaluation
- Inadequate documentation of the record
- Flawed selection decision
- Unequal treatment
- Unreasonable cost or price evaluation
Those are the most prevalent reasons the Government Accountability Office found for sustaining a bid protest in fiscal year 2019, according to GAO’s recently released annual report.
Keep in mind that out of the 587 cases that reached the point of a GAO decision, only 77 cases were sustained for a rate of 13 percent, which means that GAO agreed with the protestor. In the other 510 cases, GAO denied the protest, according to the report.
But the five most common reasons for sustaining protests do offer some insights into where you should look for when deciding whether to protest. If a mistake has been made, it will likely be in one of these five areas.
GAO lists inadequate documentation by agencies as one of the most common reasons for sustaining a protest. But any disappointed bidder must be able to document why the agency made the wrong decision.
I’ve read numerous decisions to deny a protest and GAO has written words to the effect of: disagreeing with a decision isn’t enough to convince GAO a substantive mistake was made.
I wish GAO would give metrics about the reasons why protests are denied. That could be a valuable data point when deciding whether to file a protest.
More information on all the dismissed protests would be helpful as well. What reasons are agencies giving to GAO when they tell them they are taking a corrective action? We don’t know.
GAO’s annual report makes it clear that filing a protest can be worth it for a significant number of protesters. Of the 2,200 protests filed, 44 percent found what GAO said was some sort of relief. Generally, this means the agency took a corrective action and that potentially gives the protester another shot at the contract.
The fiscal 2019 bid protest total of 2,200 cases filed was down from fiscal 2018, when GAO saw 2,607 cases filed. That is a 16 percent drop. Fiscal 2019 saw the lowest number of protests since fiscal 2009 when there were 1,989 cases filed.
But it is too early to declare a trend. Fiscal 2019 also had a record-breaking partial government shutdown that delayed many contract awards. And you can’t have protests without contract awards.