A disappointed bidder (on an Invitation for Bids), or an offeror (on a Request for Proposals), has the option to file a protest to the agency, to the General Accountability Office (GAO), or to the United States Court of Federal Claims. It is not always easy to decide where, and whether, to file a protest and contractors need to be aware of the pitfalls. One thing is certain, it is not easy to win a protest and a great deal of deference is given to contracting officers by the GAO and by the Court of Federal Claims.  It is incumbent upon a contractor to be certain that the issue raised is not frivolous, and that prior decisions of the courts or the GAO have not already established the correctness of the government’s position.

It has been my experience that if a protest involves agency policy, it is usually a good idea to file a protest with the agency to give the Contracting Officer the opportunity to take corrective action. (See FAR 33.103 for the rules on Protests to the Agency). If a protester is dissatisfied with the result of an agency protest, the protester is still permitted to take the protest to the GAO or to the United States Court of Federal Claims. As far as taking a protest directly to the GAO is concerned, unless prior GAO decisions have shown a likelihood that the GAO will agree with your position, a GAO protest is not usually a very satisfying experience. (See FAR 33.104 for the rules on Protests to the GAO, and also see the Bid Protest Regulations issued by the GAO).  (Another useful resource is the GAO’s Descriptive Guide on Bid Protests).

The statistics made available by the GAO demonstrate how difficult it is for a protester to win. In the period from 2001 through 2005, 6,543 protests were filed (an average of about 1,300 protests per year).  See the 2005 GAO report to Congress. Of these, only 1,528 resulted in a decision and in 303 of the decided cases the protester’s position was sustained. The way the GAO sees it, this means that protesters experience a 20% success rate. Of course, 20% is not very encouraging and, in reality, the way that the GAO calculates the percentage of sustained protests is misleading. By simply comparing the number of “sustains” to the number of decided cases during the period, the GAO ignores the 5,000 cases that were not decided for one reason or another. Some of those cases were probably dismissed summarily by the GAO, others were withdrawn only to be re-filed in the Court of Claims, and some of the protesters may have simply “thrown in the towel” as a result of frustration with the process. In any event, if you compare the number of “sustains” to the number of cases filed (303 out of 6,543), the protester prevailed in less than 5% of the protests. Take your pick, 20% or 5%, neither one is very good. (In 2006, there have been 1,327 protests filed to date, and 72 have been sustained).  See the 2006 GAO report to Congress.

While I have not examined similar statistics for the Court of Federal Claims, my experience has been that the process is more even-handed.  While the Court also shows considerable deference to the discretion of contracting officers, protesters tend to be more satisfied with the fairness of the judicial review than with the GAO process.  In the Court of Federal Claims almost all of the protests are decided after the filing of cross-motions for summary judgment, and there is an oral argument before a Federal Judge. This, in contrast to the GAO’s rather closed procedure (hearings occur in less than 10% of the cases), gives the protester the opportunity to respond to the Judge’s questions and to understand the Court’s reasoning. That sort of proceeding, in my opinion, is better.

A protester should proceed with caution, and only after having an attorney research the law and reported decisions pertaining to the issues in the protest.  If the basis for the protest seems to be sound, and does not involve agency policy, or a matter previously decided favorably by the GAO, the best place to file a protest may very well be the United States Court of Federal Claims.  The appropriate strategy must be determined on a case by case basis.