Federal agencies frequently take corrective action on contracting decisions either on their own or at the U.S. Government Accountability Office's prodding, but while those efforts can boost losing-bidders' competitive chances, attorneys say it's still unlikely the award will actually change hands.
Corrective actions as a percentage of bid protests, which the GAO calls its success rate, had started ticking up in the mid-2000s and has held relatively steady since fiscal 2008 at between 42 and 45 percent. In fiscal 2015, 45 percent of all GAO bid protests resulted in either a sustained protest and recommendation for corrective action, or a proactive promise from the agency to pursue a fix before the GAO rendered a decision.
Despite the high rate of corrective actions elicited from the office, in-agency protests and U.S. Court of Federal Claims challenges, those actions can amount to the agencies' merely “papering over the record” with stronger documentation and analysis to address concerns about lax reasoning, government contracts attorneys say. Thanks to the wide discretion afforded agencies, even relatively vaguely worded promises of corrective action are often enough to placate the GAO on a bid protest.
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“It might have been that the protest grounds were not that strong but in reviewing it, they saw something else that is a problem, and they realized that we will get the documents and identify the problem during the protest,” said Greenberg Traurig LLP government contracts co-chair Michael Schaengold.
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