It is highly unusual for a scholarly paper on bid protests to generate excitement in the media, but Dan Gordon has triggered a virtual firestorm by finding, in a recent article, that “[i]t is rare for a protester to win a protest, and even rarer for a winning protester to go on to obtain the contract at issue in the protest.” See Daniel I. Gordon, Bid Protests: The Costs are Real, But the Benefits Outweigh Them, Geo. Wash. Law School Pub. L & Leg. Theory Paper No. 2013-41, at 20 (2013), 42 Pub. Contr. L.J. (forthcoming Spring 2013), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2228748. Upon further reflection, however, the paper and its press coverage raise two points that are worthy of additional comment: (1) the firestorm is the result of nothing more than bad reporting; and (2) even though the author concludes that the benefits of protests “outweigh” the costs, he has significantly understated the extent of the benefits of filing meritorious protests.
First, why the “firestorm”? Well, the extent of the coverage is surely attributable to the prominence of the author, who is Associate Dean for Government Contracts Law at the George Washington University Law School and former Administrator of the Office of Federal Procurement Policy. (Full Disclosure: I was the author’s “Associate Mentor” when we worked together at Fried Frank in the late 1980s). But if the headlines are any guide, then it is the inference that bid protests are “rarely” worth pursuing that excited the media. See, e.g., Kathleen Miller, Protests Rarely Result in U.S. Contract Reversals, Study Shows, Wash. Post (Mar. 11, 2013), http://www.washingtonpost.com/business/economy/protests-rarely-result-in-us-contract-reversals-study-shows/2013/03/10/276cdc3a-873a-11e2-98a3-b3db6b9ac586_story.html (a Bloomberg Government report); Winning a Bid Protest is a Long Shot, Study Finds, Law 360 (Mar. 12, 2013), http://www.law360.com/governmentcontracts/articles/422399?nl_pk=7cbe176e-ed54-4e5b-bf0c-18fa19e26b22&utm_source=newsletter&utm_medium=email&utm_campaign=governmentcontracts. Unfortunately, the headlines, and the focus of the cited articles, completely distort the thesis of the paper, which is in its title, to wit: “The Costs are Real, But the Benefits Outweigh Them.” In other words, the crux of the paper is not that protests rarely benefit protesters, and the media coverage completely distorted that key point.
Second, in reaching the above-quoted finding, the author admits that he attempted to quantify the ultimate results after the filing of bid protests, and that it was difficult, if not impossible, to obtain reliable, comprehensive data, largely because the sheer numbers of contract actions dwarf the resources of any scholar attempting to collect data on contracting actions affected by bid protests. Unfortunately, his methodology, though well-intended, neglected an entire group of outcomes that I have achieved for clients: corrective actions that resulted in the protester obtaining at least a significant piece of the contract, whether as one of several awardees under a multiple-award RFP, or as a sub, getting 40-45% of the award in a negotiated settlement with the awardee. In the latter cases, the agency often encouraged the awardee, and the awardee accepted because it did not want to risk losing the entire award in a protest decision. In each of the instances, the agency either rewarded my client or encouraged a settlement because — I surmise — it did not want an adverse published decision. To be sure, these outcomes have been the exception, not the rule, but there are hundreds, if not thousands, of other protest attorneys besides me, and I would think that many of them have had some similar experiences. Thus, although, as the author asserts, there may be “no obvious reason” why a protester would gain a benefit from filing a protest that did not result in a decision sustaining the protest, my experience, and surely that of numerous other government contracts lawyers, demonstrates that the likelihood of obtaining substantial, albeit not necessarily complete, success in filing a protest is substantially greater than the author found.