Bid protests: If it ain't broke, don't fix it.

• Author: Carey, Jay
• Position: Government Contracting Insights

* The Government Accountability Office's bid protest I system is one of the most efficient and effective ways this nation has of protecting itself from wasteful spending. It ensures that agencies make rational, informed decisions about what really constitutes "best value."

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In recent years, the Department of Defense has complained that there are too many protests overall, and that the system is awash in "frivolous" protests. But the facts don't support those complaints.

The system includes key elements that discourage and prevent frivolous protests. Nonetheless, DoD's complaints seem to have gained some traction in the Senate. Three provisions in the Senate version of the 2017 National Defense Authorization Act would limit GAO's jurisdiction and otherwise curtail protests.

We believe the provisions as written would significantly reduce GAO's oversight function, producing unintended and undesirable consequences.

Protests have been increasing over the last number of years. But the number of protests is not high by historical standards. In fiscal year 2015, GAO received 2,639 protests, for an average of just 6.0 protests per billion dollars in procurement spending. In contrast, in 1993, GAO received 3,377 protests, for an average of 11.1 protests per billion, adjusted for inflation.

Also, after significant increases from 2008 through 2011, the growth in protests has begun leveling off. The steepest increases coincided with the implementation of GAO's jurisdiction over task and delivery order competitions valued at more than $10 million. In fiscal year 2014, 21 percent of all contracting dollars --$94 billion--was awarded via multiple award, "fair opportunity" contracts.

The use of task and delivery order competitions is exploding, making GAO's continued oversight of such procurements critical.

Each year, GAO tracks the "effectiveness rate" of protests, which is the percentage of protests in which GAO sustains, or the procuring agency voluntarily agrees to take corrective action. In fiscal year 2015, the effectiveness rate was 45 percent. So in almost half of all cases, the protester identified a problem that either GAO, or the procuring agency itself, agreed needed to be fixed. Nor was 2015 an outlier: In each year from 2008 to 2015, the effectiveness rate was 42 percent or higher. These numbers show that protesters are doing a good job of identifying when there's a problem that needs to be fixed.

The high effectiveness...