During the last two decades, Congress has repeatedly required the U.S. Government Accountability Office, the U.S. Department of Defense, and other organizations to provide data and analysis regarding perceived concerns with the GAO's bid protest process.

Most recently, Section 885 of the National Defense Authorization Act for fiscal year 2025 required the GAO to prepare yet another report regarding bid protests, and again raised the specter of congressional limitations on the GAO's protest process.

In July, the GAO responded with a report and testimony to the relevant subcommittee of the U.S. House of Representatives' Oversight and Government Reform Committee.[1]

To address Congress' concerns, in its report and testimony, the GAO made small modifications to the way it describes its pleading standard, and explained that relevant cost and lost-profits data is not available to respond to Section 885's questions regarding fee-shifting proposals that would penalize unsuccessful protesters. The GAO also explained numerous policy concerns with such proposals.

The GAO's revised description of its pleading standard does not appear likely to have a material impact on the viability of many bid protests, and without relevant information, there appears to be no basis on which to penalize unsuccessful protesters with fee shifting.

But the GAO's response to Section 885 and previous responses to similar inquiries reveal much more. In short, although analyses and attempts to improve the bid protest process may be beneficial, the repeated, similar examinations and efforts to limit protests based on unsubstantiated purported problems should cease unless and until data to support whatever concerns might be identified is provided.

FY 2025 NDAA Section 885 and the GAO's Response

Section 885 of the FY 2025 NDAA required that after analyzing specified information regarding bid protests, the GAO submit a proposal that included:

An enhanced pleading standard that an interested party — a protester — must satisfy to pursue a protest and access an agency's administrative record;

Benchmarks comprising categories of protest-related costs, including the average cost of protests of DOD procurements at the GAO and lost profit rates of awardees whose contract awards are challenged; and

A process for an unsuccessful party to pay the government and the contract awardee in an unsuccessful bid protest.

Pleading Standard

The GAO first noted that under its existing pleading standard, claims are summarily dismissed when supporting allegations are based on speculation, factual inaccuracies or flawed legal assumptions, and asserted that its standard does not allow a protester "to embark on a fishing expedition for protest grounds."

Because its decisions had been described in ways that varied, which resulted in criticism that protesters did not clearly understand what was required, the GAO explained it would clarify and enhance its pleading standard to resolve potential ambiguity.

Specifically, the GAO has revised its prior pleading standard, which required that a protest must either allege or provide evidence that, if not contradicted, establishes a likelihood of improper agency action.

On Aug. 5, in the Matter of Warfighter Focused Logistics Inc., the GAO adopted a new formulation requiring protesters to "provide, at a minimum, credible allegations that are supported by evidence and are sufficient, if uncontradicted, to establish the likelihood of the protester's claim of improper agency action."[2]

Because noncredible or unsubstantiated allegations already did not support protests, it is unlikely that the addition of "credible" will materially change the pleading standard.

The GAO's clarification that allegations must be supported by evidence may increase the pleading burden slightly — by making clear that something more than bare allegations is required in a GAO pleading — but such small wording changes must be analyzed in the context of specific allegations in future GAO cases to understand their ultimate effect.

Cost Benchmarks for Potential Penalization of Protesters

With respect to the average costs to the DOD of a covered protest, based on the value of the contract at issue, the GAO and the DOD sought potential costs for agency personnel to respond to and defend against a protest, and sought potential programmatic costs resulting from compliance with a stay under the Competition in Contracting Act.

The GAO explained that no such data exists. The DOD and the GAO are not statutorily required to collect such data on either litigation or nonlitigation protest-related costs, and the DOD does not do so.[3]

Absent legislation directing the DOD to track such information in the future, the GAO and the DOD will not be able to provide such data to Congress.

Problems With Requested Information About Recovery of Lost Profits

With an eye toward forcing unsuccessful protesters to pay an awardee's lost profits during the pendency of a protest, FY 2025 NDAA Sections 885(c)(2) and (d) instruct the GAO to provide a chart showing the lost profit rates of contract awardees that were the subject of a postaward protest.

After recognizing that the DOD's lack of expectancy damages-related data concerning bid protests made it impossible to meaningfully respond to Congress' lost-profits inquiry, the GAO highlighted several potential problems with additional fee-shifting provisions.[4]

For instance, the GAO explained that fee shifting is not needed to address purportedly frivolous protests, as the GAO has sufficient capabilities to efficiently resolve them, including those that might be considered frivolous. The GAO also cautioned that the threat of fee-shifting penalties could have a chilling effect on offerors' willingness to attempt to vindicate their rights and correct procurement errors.[5]

The GAO then described — but did not endorse — two potential methodologies Congress could pursue.

First, the DOD could require the inclusion of a contract clause in existing contracts or awards of bridge contracts to incumbent contractors that recognizes the DOD's right to seek reimbursement from the contractor if it files a protest that is dismissed.

Second, the GAO could be allowed to recommend the payment of costs to the DOD and the awardee whose contract was stayed during the pendency of a protest when the GAO determines that an unsuccessful protest was filed without a reasonable factual or legal basis.

Congress' Repeated Questioning Not Helpful

As noted above, Section 885 did not contain the first-ever direction by Congress or critics of bid protests to analyze the GAO's bid protest process.

These include, among others, the following.

The FY 2009 NDAA required a review of bid protests, and the extent of problematic protests, with the goal of disincentivizing "frivolous and improper bid protests on the part of industry."[6]

In the FY 2017 NDAA, the U.S. Senate Armed Services Committee proposed penalizing unsuccessful protesters; it also required an independent study of the protest process, which was performed by the RAND research organization.[7]

In 2019, the so-called Section 809 Panel issued its final report, which included several recommendations that would have severely restricted GAO bid protests.[8] The panel's bid protest recommendations were not adopted.

The FY 2025 NDAA required the GAO and the DOD to perform additional protest analyses and provide responses to previously analyzed questions.

None of these legislative mandates yielded meaningful results in terms of data showing abuse of the protest process or developing reform that would improve the process. The RAND report repeatedly demonstrated that complaints about purportedly frivolous protests imposing significant demands on the DOD or causing substantial delays in the procurement system were unsupported by all available evidence.

Key Takeaways From Repeated Analyses of Potential Protest Reforms

First, critics' persistent complaints about frivolous or wasteful bid protests are simply not supported by any evidence.

The GAO considers a protest to be effective if the protester obtains some relief from the agency, either as a result of voluntary corrective action or the GAO sustaining the protest in a written decision. Last year's GAO annual report showed effectiveness rates from FY 2020 through FY 2024 ranging from 48% to 57%.

To the extent that the volume of so-called frivolous protests was increasing, one would not expect the GAO's effectiveness rate to hold steady — or slightly increase — over much of the last two decades.

Thus, available bid protest data consistently reveals significant problems with more than half of the procurements under review. None of the analyses of bid protests challenged the accuracy of the GAO's data regarding its effectiveness rate.

Given these unopposed statistics, it's not apparent that the bid protest process is being abused, or that it is causing unjustifiable problems that cannot be remedied by existing procedures.[9] Indeed, the available data suggests that GAO bid protests are a valuable oversight mechanism for the federal government's use of taxpayer money.

Second, Congress' requests for further analyses and critics' requests for protest restrictions are unnecessary given that bid protests have been declining for much of the last 20 years.

The 2018 RAND report demonstrated that although the GAO protests increased from 2008-2016, the numbers had dramatically declined relative to the late 1980s.

And figures in the GAO's July 22, 2025, report make clear that its bid protest activity has been on a downward trend since 2016.

No one disputes that only a very small percentage of the DOD's procurement actions — i.e., 0.3% to 0.5% — are even subjected to bid protest review.[10] Accordingly, there is no reason to disincentivize government contractors from participating in the procurement process when the GAO protest process is being used less often.

Third, adopting an additional fee-shifting process or other penalty procedure to potentially punish protesters for unsuccessful challenges would be unworkable, unnecessary and, inevitably, unfair.

Based on the limited information available in a debriefing, the bid protest process provides disappointed offerors with an incentive to risk their own resources to vindicate not only their rights but also to provide the only meaningful and timely oversight of federal, executive branch procurement.

Among other problems, forcing protesters to bear the additional risk of paying fee-shifting or lost-profit awards would unfairly undermine the effort to obtain meaningful oversight.

Fourth, instead of further efforts aimed at penalizing contractors for filing supposedly frivolous protests, policymakers should work on areas in which there is broad agreement that the procurement system could be more transparent and thereby likely to reduce protests.

After the July 22 hearing, the House Oversight Subcommittee issued a press release titled "Hearing Wrap Up: Congress Must Close Loopholes and Reform Bid Protest Process" that did not explain what loopholes purportedly exist but did show witnesses collegially informing representatives about agreements concerning enhanced debriefing procedures.[11]

Further enhancing those postaward, information-sharing procedures and applying such changes across all federal procurements would increase transparency in the procurement system — and likely reduce further the need for and number of bid protests.

Conclusion

Contractors, policy professionals and attorneys who are involved in the process recognize that bid protest analyses and decisions are imperfect. But before further studies are required, data supporting the notion that there is a problem must be compiled.

As Kenneth E. Patton, the GAO's managing associate general counsel, explained during the House Subcommittee hearing, "I think that if there are legitimate questions people have about its efficacy, those ought to be explored. And to the extent there are concerns, they should be addressed. But ... we do need the data to support whatever concerns might be identified."

In our view, this is exactly right. Instead of relying on anecdotes and unsubstantiated beliefs regarding supposedly abusive types of protests, critics of the bid protest process should be required to provide hard data demonstrating the existence and extent of problems in need of reform.

Asserting there is a problem that must be remedied does not make it so, and almost 20 years of having the GAO and the protest bar defend a process that largely operates as intended — and is subject to correction when it doesn't — is more than enough.

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