Bid protest system working as intended, GAO data shows

Responding to a concern that too many frivolous bid protests are filed at the Government Accountability Office, the 2026 National Defense Authorization Act included a “loser pays” provision, which would impose financial penalties on unsuccessful protesters in certain circumstances.

But GAO’s Bid Protest Annual Report to Congress for Fiscal Year 2025, released earlier this month, evidences no wave of frivolous protests.  To the contrary, the 2025 report shows that most disappointed offerors are coming to GAO with legitimate concerns, and agencies are addressing those concerns through voluntary corrective action.

In short, the GAO protest system is working as intended to drive accountability in the procurement process.

GAO’s annual bid protest report provides key metrics from the prior fiscal year, including: the number of protests filed; the number of merits decisions; and the “sustain rate” (i.e., the percentage of merits decisions in which GAO sustains the protest).

In addition, GAO’s annual report also provides an “effectiveness rate,” which is the percentage of cases in which the protester obtained “some form of relief from the agency . . . either as a result of voluntary agency corrective action or [GAO] sustaining the protest.”  FY25 Report at 5 n.4.  Because agencies voluntarily take corrective action in a large number of protests, obviating the need for GAO to issue a decision on the merits, the “effectiveness rate” is arguably the most meaningful measure of protesters’ success.

GAO’s report shows that the number of protests filed decreased by 6% from the previous year which — apart from an isolated uptick in fiscal 2023 — is consistent with a steady decline dating back to at least 2021.  Meanwhile, the effectiveness rate exceeded 50% for the fourth year in a row — meaning that more than half of all protests either convinced GAO to sustain or convinced the agency to take voluntary corrective action. 

Taken together, these statistics show that disappointed offerors are filing fewer protests than they were four years ago, yet are obtaining relief more frequently.

Thus, GAO’s bid protest system is functioning as it should.  Far from inundating GAO with frivolous filings, most protesters are doing a good job assessing whether they have a valid concern worth pursuing in a protest.  And rather than digging in their heels and defending flawed award decisions, agencies are often voluntarily taking corrective action to address those concerns and fix mistakes so that work can begin on a properly awarded contract as quickly as possible.

Thus, most protesters and agencies are acting in good faith so that GAO may fulfill its mission of expeditiously resolving legitimate procurement concerns.

It’s worth noting that the decline in the number of protests and the high effectiveness rates over the last four years coincide with the implementation of more rigorous debriefing requirements for defense procurements.

In March 2022, the Defense Federal Acquisition Regulation Supplement established an enhanced debriefing process that gives disappointed offerors an opportunity to submit follow-up questions in response to their initial debriefings and (if the contract award exceeds a certain dollar threshold) requires the agency to provide a redacted copy of the source selection decision.

Armed with greater information from their enhanced debriefings, defense contractors are able to make more informed decisions about whether to protest.

The FY25 Report shows that most of them use that information wisely and protest only when they have valid concerns. 

J. Hunter Bennett, Jason A. Carey and Andrew R. Guy are attorneys with the law firm of Covington & Burl.