The first question most clients ask when we are discussing whether it makes sense to file a bid protest is: “What are my chances of winning?” No one wants to file a bid protest unless there is a reasonable chance of winning something out of it. The good news is, the odds are better than you may think. If you have a sound basis for filing, and it is submitted in a professional and timely manner, you have an excellent chance of winning in a protest to the GAO.
The GAO recently reported its 2010 bid protest statistics to Congress. The report shows the percentage of cases where the protester got some form of relief from the agency, which the GAO calls the “effectiveness rate.” For 2010, the effectiveness rate was 42%. The relief could include winning on the merits, getting relief using the GAO Alternative Dispute Resolution process, or the agency granting some other form of relief.
Once again there was a steady increase in protests filed with the GAO. There were 2,299 cases filed in 2010, up 16% from 2009. Of the open cases in 2010, 2,226 were closed. Virtually all cases are decided within the 100 days allowed under the Competition in Contracting Act, and most were decided within 30 days.
The GAO issued 441 merit decisions in 2010. A merit decision is one that is either sustained or denied on the merits of the case. That is a dramatic increase in merit decisions over 2009, when 315 merit decisions were issued. Of the 441 merit decisions issued, 82 were sustained, for a 19% sustain rate. The sustain rate had been falling for the last few years, but appears to have leveled out for 2010 (2006, 29%; 2007, 27%; 2008, 21%; 2009, 18%). While the sustain rate had been falling over the four year period from 2006-2009 the effectiveness rate during this period has generally been around 40% (2006, 39%; 2007, 38%; 2008, 42%; 2009, 45%). The effectiveness rate being approximately double the sustain rate indicates the agencies are making an effort to identify filed protests that have a good chance of winning, and offer some relief requested in the protest before a decision on the merits. This is good news for potential protestors.
The odds of winning some relief by filing a protest with the GAO are excellent, typically around 40% for the last five years (42% for 2010). The next question most clients ask is: “Do I have a good basis to protest to the GAO?” That question is highly dependent on the specific facts in your situation, but it turns out there are a relatively few legal issues that most often win in protests. The next article in this series will look at the legal bases that most often win in protests, and examine the odds of winning with each legal basis.