A recent study from the Congressional Research Service (CRS) identified several notable trends in bid protests before the Government Accountability Office (GAO) from FY 2001 to FY 2014.  Foremost among these trends are (1) a significant increase in bid protests filed over the past fourteen years but relative stability in filing rate over the past several years; (2) a decrease in the protest sustain rate but increase in “effectiveness rate” over the same time period; and (3) a divergence in protest statistics between civilian and defense contracts.

The CRS report provides a longer-term perspective on protests trends than the GAO’s annual report to Congress, which focuses on only the past five years.  This longer-term perspective highlights the remarkable growth in GAO filing rates and the wide-ranging impact of the GAO protest process on procurements government-wide.

More Protests Filed:  CRS noted that in FY 2014, GAO received 2,561 protests, a 125% increase since FY 2001.  This increase is even more dramatic when adjusted to examine how many procurements were protested by excluding multiple protests on a single procurement, cost claims, and requests for reconsideration.  From FY 2001 to FY 2014, the number of procurements protested increased from 700 to over 2,100.  However, protests filings have remained steady since FY 2011, with a less than 3% increase over that timeframe, indicating a recent stabilization in protest filings.

Lower Sustain Rate But Higher Effectiveness Rate:  While filings rates have increased significantly, sustain rates have declined slightly.  From FY 2001 – FY 2008, the sustain rate was at 22%.  That figure declined to 17% from FY 2009 – FY 2014.  FY 2014 saw a 13% sustain rate, the lowest rate in the CRS report’s period of study.

By contrast, the protest “effectiveness” rate has increased from 33% in FY 2001 to 43% in FY 2014.  CRS noted competing theories for the increase in effectiveness rate, including the predicable nature of GAO decisions leading agencies to take voluntary corrective action as well as agency risk-aversion.

Defense v. Civilian Contracting:  The CRS report concluded that, on average, civilian procurements are more likely to be protested and be the subject of sustained protests than defense procurements.  Protest filing rates of both defense and civilian procurements are on the rise, but the growth is more pronounced for civilian procurements, which has seen a 260% rise in protests since FY 2001, as compared to 170% in defense procurements.  While protests of defense procurements still outnumber civilian procurement protests in the aggregate, the gap is quickly shrinking, with civilian procurements accounting for 48% of protests closed in FY 2014.

The CRS report also found that protests of defense procurements are less likely to be sustained than civilian procurement protests.  Between FYs 2008 – 2014, 2.5% of defense-related protests were sustained by GAO, as compared to 5.0% of civilian agency protests.

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Photo of Jennifer Plitsch Jennifer Plitsch

Jennifer Plitsch leads the firm’s Government Contracts Practice Group, where she works with clients on a broad range of issues arising from both defense and civilian contracts including contract proposal, performance, and compliance questions as well as litigation, transactional, and legislative issues.


Jennifer Plitsch leads the firm’s Government Contracts Practice Group, where she works with clients on a broad range of issues arising from both defense and civilian contracts including contract proposal, performance, and compliance questions as well as litigation, transactional, and legislative issues.

She has particular expertise in advising clients on intellectual property and data rights issues under the Federal Acquisition Regulations (FAR) and obligations imposed by the Bayh-Dole Act, including march-in and substantial domestic manufacturing. Jen also has significant experience in negotiation and compliance under non-traditional government agreements including Other Transaction Authority agreements (OTAs), Cooperative Research and Development Agreements (CRADAs), Cooperative Agreements, Grants, and Small Business Innovation Research agreements.

For over 20 years, Jen’s practice has focused on advising clients in the pharmaceutical, biologics and medical device industry on all aspects of both commercial and non-commercial agreements with various government agencies including:

  • the Department of Veterans Affairs (VA);
  • the Department of Health and Human Services (HHS), including the Biomedical Advanced Research and Development Authority (BARDA), the National Institutes of Health (NIH), and the Centers for Disease Control (CDC);
  • the Department of Defense (DoD), including the Defense Threat Reduction Agency (DTRA), the Defense Advanced Research Projects Agency (DARPA), and the Joint Program Executive Office for Chemical Biological Defense (JPEO-CBRN); and
    the U.S. Agency for International Development (USAID).

She regularly advises on the development, production, and supply to the government of vaccines and other medical countermeasures addressing threats such as COVID-19, Ebola, Zika, MERS-CoV, Smallpox, seasonal and pandemic influenza, tropical diseases, botulinum toxin, nerve agents, and radiation events. In addition, for commercial drugs, biologics, and medical devices, Jen advises on Federal Supply Schedule contracts, including the complex pricing requirements imposed on products under the Veterans Health Care Act, as well as on the obligations imposed by participation in the 340B Drug Pricing program.

Jen also has significant experience in domestic sourcing compliance under the Buy American Act (BAA) and the Trade Agreements Act (TAA), including regulatory analysis and comments, certifications, investigations, and disclosures (including under the Acetris decision and Biden Administration Executive Orders). She also advises on prevailing wage requirements, including those imposed through the Davis-Bacon Act and the Service Contract Labor Standards.

Photo of Nooree Lee Nooree Lee

Nooree is a Partner in Covington’s Government Contracts practice.  He represents government contractors in all aspects of the procurement process and focuses his practice on the regulatory aspects of M&A activity as well as foreign military sales and other international contracting matters.