Several times a week, the Government Accountability Office (“GAO”) posts bid protest decisions on its website. Generally, decisions are not posted in their entirety; portions of the bid protest decision are often redacted due to protective orders in place. For this reason, in can be a challenging task for government contractors to extract information that will be helpful to them in deciding whether to bring future bid protests.
Are GAO Published Bid Protest Decisions Useful In Deciding Whether to Protest?
Last week, Lee Dougherty, a partner in the firm Fluet, Huber and Hoang PLC in Washington, DC, wrote a guest blog post for Washington Business Journal’s FedBiz Daily, titled “To Protest or Not to Protest: GAO Decisions Provide Little Help”. The article discussed how GAO bid protest decisions are something potential protestors should review, but are often of little help to the decision of whether to protest.
In the article Mr. Dougherty discusses how and why government contractors cannot gain much insight into how GAO evaluates bid protests from one decision. Mr. Dougherty identifies that bid protests do not always result in written decisions, when written decisions are issued, few documents are released to the public and in the written decisions, GAO chooses what issues to discuss. As a result, it can be difficult for contractors to gain meaningful guidance from each individual decision published.
How Do Government Contractors Decide When to Protest?
Because of the variables with individual decisions, decisions are instructive but not definitive as to how the GAO will rule in future cases. Rather than consider only individual decisions, Mr. Dougherty suggests that contractors review multiple decisions over an extended period of time.
While I don’t completely agree with Mr. Daugherty’s position on individual decisions, I do agree his suggestion to review multiple decisions over an extended period of time is a good one. However, it can be a challenge when taking into account the number of decisions posted per week and the time involved in conducting a proper analysis of each decision.
Additionally, while reviewing decisions over an extended period of time will give the contractor a better sense of how a bid protest may be decided, that method is not always practical for the average government contractor. It is true that bid protests are increasing in frequency, however contractors do not necessarily operate their businesses with the idea that a protest is inevitable.
What Government Contractors Need to Know
I believe that the answer is two-fold. First, bid protest decisions, whether read individually or in groups spanning extended periods of time, are useful tools in determining whether to protest. The decisions are one tool among several that contractors can use to gain valuable information about the strength of their bid protest case.
Second, in addition to published decisions, there are other factors that should be considered in deciding whether to protest. Other considerations include:
- The debriefing. Request it and use the tool to gather as much information as possible.
- The basis and strength of potential claims. Are they based on disputes with agency decisions or disputes over the agency process? What are the specific points of contention?
- Is filing a bid protest a good business decision? Consider cost compared with the potential recovery. Analyze resources that will be needed and the opportunity cost of diverting those resources to the protest.
Conclusion
GAO published bid protest decisions are useful and instructive, but should be one tool among several in making the decision whether to protest. Government contractors should gather as much information as possible, fully consider what has been gathered and protest if the data points to the bid protest as a good business decision.
The post Should Past GAO Decisions Be Considered in Deciding Whether to File a Bid Protest? appeared first on Federal Government Contract Digest.