Chances to Win a Claim or Protest
The first question most clients ask when we are discussing whether it makes sense to file a claim or bid protest is: “What are my chances of winning?” No one wants to file a claim or bid protest unless there is a reasonable chance of winning something out of it. The good news is, the odds are better than you may think. If you have a sound basis for filing, and it is submitted in a professional and timely manner, you have an excellent chance of relief. The ASBCA (for claims) and the GAO (for protests) recently released their 2018 statistics, which helps answer that question.
Claims—Armed Services Board of Contract Appeals
The ASBCA hears and decides post-award contract disputes between government contractors and the DoD; NASA; the CIA; and other entities with whom the ASBCA has entered into agreements to provide services. At the end of 2018, the ASBCA had 901 active appeals: the Army Corps of Engineers has 274 (30.4%), DLA and DCMA have 217 (24.1%), the Army has 160 (17.1%), the Navy has 151 (16.8%), the Air Force has 84 (8.2%) and 25 appeals (2.8%) are from other sources.
During FY 2018, the ASBCA ruled on 139 cases on the merits. Of those rulings, 96 (69.1%) found merit in whole or in part. The ASBCA dismissed 420 appeals. In the majority of cases, a dismissal reflects the parties have reached a settlement.
Bid Protests—Government Accountability Office
During FY 2018 the GAO received 2,607 cases: 2,474 protests, 55 cost claims, and 78 requests for reconsideration. The GAO closed 2,642 cases: 2,505 protests, 53 cost claims, and 84 requests for reconsideration. The top reason for sustaining a protest was unreasonable technical evaluation, followed by unreasonable cost or price evaluation.
Of the 2,642 cases closed, 622 went all the way to a decision, and 2,020 were dismissed. Only 5 cases involved a hearing. Of the 622 rulings, 92 (15%) were sustained. But that number does not tell the whole story. When a protest is filed and the government reviews the protest and believes the protest has merit, the agency often takes voluntary corrective action to resolve the issue. When that happens, the protest is dismissed. The GAO reports the number of cases based on the protester getting relief from the agency, either as a result of voluntary agency corrective action or the GAO ruling in their favor. The GAO calls the percentage of cases where the protestor gets relief, the “Effectiveness Rate.” For FY 2018, the Effectiveness Rate was 44%. This figure is a percentage of all protests closed during 2018 where the protestor got relief.
If you have questions regarding claims, bid protests, or other federal government contract issues, contact the professionals at Williamson Law Group at (301) 788-8198 for confidential and candid assistance and counsel, or e-mail Scott Williamson, managing attorney, at firstname.lastname@example.org.
This Contract Compliance Update is to keep readers current on government contract matters and is not intended to be legal advice. If you have any questions, please contact Williamson Law Group for legal advice regarding your particular case.