Bradley attorney Aron Beezley was quoted in Law360 on the factors contributing to the reduction of the number of Government Accountability Office (GAO) protests filed in 2019. While the success rates of those filed were higher than average, refuting lawmakers’ concerns about frivolous protests, the number of cases filed decreased 16% from 2018.
Beezley said bid protest numbers are up at the U.S. Court of Federal Claims, suggesting that more protesters may be headed straight to the court without filing a GAO protest first.
Although the GAO has long been perceived as a quick — cases are, with very rare exceptions, decided within 100 days — and relatively inexpensive way to pursue a protest, the claims court's case law on some issues differs in ways that some protesters may view as advantageous, Beezley said.
Also, federal agencies have recently been more open to voluntarily staying contracts while claims court cases play out, reducing the incentive provided by the automatic stay on contract performance that comes from a GAO protest, Beezley noted.
The new enhanced debriefing process required by a clause in the 2018 NDAA that makes it mandatory for the DOD to give post-award debriefings for all contracts valued at more than $100 million — or $10 million for small business and "nontraditional" contracts — may also be contributing to the reduction in new cases, according to Beezley.
The process takes longer, which inherently provides a "cooling-off period" in which a company may decide not to protest, Beezley said. And it serves to cut down on protests filed simply to glean more information from an agency about why a company wasn't considered for a particular deal, Beezley noted.
The complete article, “Bid Protest Successes Counter Agencies Frivolity Concerns,” first appeared in Law360 on November 14, 2019.