The recent GAO report to Congress shows that GAO’s protest business is not in any danger of shrinking even though other Federal agencies are concerned about the looming fiscal cliff. Nearly 2,500 protests were filed in FY 2012, a five percent increase from the prior year. While GAO has had steeper annual increases, the raw number itself is telling because it shows that contractors are literally fighting for their lives. Perhaps the most important figure in the report is the 42% “effectiveness rate,” i.e., a number showing the combination of actual sustains (106 as compared to 67 in FY 2011) plus cases in which the agency elected to take “corrective action” before GAO could rule on the merits.
Pundits can read a lot into numbers like these. For example, a 42% effectiveness rate is pretty impressive when you think back to the pre-CICA days when less than five percent of protests were sustained. With that kind of statistic one might be tempted to think that every loss should be protested, but that is simply not a prudent approach. For example, while an agency’s decision to take corrective action might be viewed as a victory, we don’t have any statistics on how often the agency cleans up its mess and awards to the same company.
Every potential protest must be evaluated on its facts and its merits. A 42% effectiveness rate doesn’t cure a challenge, say, against an agency’s affirmative determination of responsibility. And while some commentators have indicated that the filing of a protest should not affect the protester’s relationship with the federal agency in question, that risk has not disappeared. Finally, the opportunity to discuss this annual report should also serve as a reminder that the GAO is not the only protest forum; indeed, depending on the facts, you might be far better off filing an agency-level protest.
Bottom line: before you decide to protest, or not protest, run it by an independent expert who can provide you with objective, practical advice.
