The one disadvantage to protesting agency contract action at the Government Accountability Office (GAO) is that GAO decisions aren’t binding or mandatory – they’re effectively advisory. A contracting agency doesn’t have to follow them (although if it does not, it must explain why). But based on the GAO’s annual report released to Congress on November 18, 2014, it’s clear that this “disadvantage” doesn’t really exist, as in Fiscal Year 2013, every single contracting agency facing a sustained GAO protest elected to implement the GAO’s recommendation, with only one exception.
In case you’re curious, this one case involved the Air Force’s effort to implement its Food Transformation Initiative without following applicable competitive procedures. The protestor successfully argued that the Air Force had improperly invoked the public interest exception under 10 U.S.C. 2304(c)(7), which led to the unreasonable justification of using a Memorandum of Agreement to implement the Food Transformation Initiative. Asiel Enterprises, Inc., B-408315.2, (September 5, 2013).
The GAO’s annual report also addressed the government shutdown’s effect on protest resolutions. As noted, during this time, the GAO extended bid protest deadlines by one day for each day the GAO was shut down. When the federal government shut down on October 1, there were 280 active bid protest cases in progress. Because the government shutdown lasted for 16 days, the bid protest deadlines were extended for a maximum of 16 days.
Last, the annual report gave us the skinny on statistics: how many protests before the GAO were successful? According to the annual report, of the 556 protests decided on the merits (i.e., not denied for timeliness or procedural issues), only 13% (72 protests) were sustained. However, we should keep in mind that these figures don’t account for the instances where an agency took corrective action on its own initiative following a GAO protest, resulting in the protest being dismissed as moot. This means the success rate isn’t truly 13%; according to a chart on page seven of the report, 43% of all protestors received some form of relief from the agency (such as voluntary corrective action). Not too shabby.
Access the GAO’s report here.
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