Protest Sustained

A protest sustained is the outcome when the GAO agrees with the protesting contractor that the government conducted a flawed procurement and recommends specific corrective action to remedy the error. The GAO sustains approximately 14-17% of protests decided on the merits annually.

What is a Protest Sustained?

When the GAO issues a decision sustaining a bid protest, it has found that the procuring agency violated a statute, regulation, or the terms of the solicitation in a way that prejudiced the protester, meaning the error could have affected the outcome of the competition. A sustained protest does not automatically result in the protester receiving the contract. Instead, the GAO recommends specific corrective action tailored to the identified error.

Common corrective actions accompanying sustained decisions include: reevaluating proposals with corrected criteria, amending the solicitation and requesting new proposals, reopening discussions with offerors, or making a new source selection decision. In cases where the solicitation was fundamentally flawed, the GAO may recommend cancellation and resolicitation from the beginning.

The GAO may also recommend that the agency reimburse the protester's reasonable costs of pursuing the protest, including filing costs and attorney fees, when the agency unduly delayed taking corrective action after the basis for correction should have been apparent. Cost reimbursement is not automatic, the protester must separately request it and demonstrate the reasonableness of claimed costs.

Why Protest Sustained matters for government contractors

A sustained protest is a meaningful legal victory that gives losing offerors a second chance to compete on a level playing field. Beyond the immediate procurement, sustained decisions often produce publicly available GAO opinions that reveal systemic evaluation errors at specific agencies, intelligence valuable for any contractor pursuing future work with those agencies.

Example

A healthcare IT firm protests an HHS contract award, arguing the agency evaluated its past performance as "Satisfactory" without considering three highly relevant CPARS-rated contracts the firm submitted. The GAO reviews the agency's past performance evaluation record and finds the evaluators failed to consider two of the three cited references. The GAO sustains the protest, directs the agency to conduct a new past performance evaluation using all submitted references, and recommends reimbursement of the firm's protest costs.

Frequently Asked Questions

Does a sustained protest mean the protester wins the contract?

Not necessarily. A sustained protest means the agency must take corrective action, typically reevaluation or resolicitation. After reevaluation, the original awardee may still win if the corrected evaluation still favors them. The protester receives a fair second chance, not a guaranteed award.

What percentage of GAO protests are sustained?

The GAO sustains approximately 14-17% of protests that are decided on the merits annually. Approximately 30-40% more are resolved through voluntary corrective action before a decision, which the GAO classifies as effective outcomes for protesters.

Can the agency ignore a GAO sustained decision?

Technically yes, GAO recommendations are not legally binding court orders. In practice, agencies comply with nearly all sustained decisions. An agency that refuses must notify Congress, and non-compliance would invite significant Congressional and oversight scrutiny.

Does a sustained protest go on the protester's record as a win?

The GAO tracks sustained decisions in its annual report to Congress. A sustained decision is generally treated in the industry as a formal protest win, though what matters most practically is whether the resulting corrective action leads to a contract award.