Bid Protest Successes Counter Agencies' Frivolity Concerns

Jay Carey spoke with Law360 about the high rate of success for federal contract protests at the Government Accountability Office over the last five years, as shown in a recent GAO report. Mr. Carey say among other barriers in the way of a successful protest, protesters bear the burden of proof, often have less access to relevant information than agencies, and face tight deadlines for filing, so 44% is an "incredibly high" effectiveness rate. "That, to me, says that protesters are doing a pretty good job of identifying protests where it makes sense to raise a concern," he adds. He went on to say, although intended to help pay for upkeep of the filing system, the new fee also added a new "gating mechanism" to the filing process, which may have prompted some potential protesters — particularly smaller companies — to more carefully consider whether a protest makes sense.