From the U.S. Government Accountability Office, www.gao.gov

Transcript for: GAO Testimony: Bid Protest Reform: Understanding the
Problem

Description: Opening Statement of GAO Managing Associate General Counsel
Kenneth Patton testifying on July 22nd, 2025, before the Committee on
Oversight & Government Reform regarding how the laws and regulations
that govern contracting with the federal government are designed to
ensure that federal procurements are conducted fairly.

Related GAO Work: GAO-25-108652, Bid Protests: Key Features and Trends

Released: July 2025


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GAO Testimony before Congress

Bid Protest Reform:
Understanding the Problem

Opening Statement by
Kenneth Patton
General Counsel, GAO

July 22nd, 2025

Committee on Oversight & Government Reform


[ Kenneth Patton, Managing Associate General Counsel, GAO, speaking: ]

Chairman Sessions, Ranking Member Mfume, and members of the
subcommittee. Thank you for the opportunity today to talk about bid
protests and possible bid protest reform.

The Competition in Contracting Act of 1984, or CICA, establishes that
GAO is to provide for the inexpensive and expeditious resolution of
protests. Consistent with this authority, GAO resolves more than 1,000
protests every year, all within 100 calendar days.

However, over the last 10 years, the number of protests filed at GAO has
steadily declined by 32%, and the number of protests filed at DOD has
declined by an even greater proportion, by 48%. Notwithstanding that
decline, the data from our annual bid protest reports reflects that the
effectiveness rate that is, the rate at which protesters receive some
form of relief either as a result of GAO sustaining a protest or the
agency taking corrective action, has remained relatively stable at 50%.

Recently, Section 885 of the National Defense Authorization Act for
Fiscal Year 2025 included a provision for GAO to propose various
possible reforms to the protest process, as well as to create benchmarks
of the costs of bid protests. In this regard, while the benefits of the
protest system in promoting accountability and integrity in federal
procurements are important, those benefits must be balanced against the
public's interest in allowing the government to efficiently acquire the
goods and services necessary to discharge their obligations.

Section 885 included three provisions.

First, GAO was to consider enhanced pleading standards that protesters
must meet before receiving access to administrative records of DOD
procurements. Our regulations currently provide a robust pleading
standard, and protests that do not meet this standard are dismissed,
typically early in the process and prior to receiving access to agency
records. While our current pleading standard allows us to dismiss
legally insufficient protests early in the process, we propose to
enhance our standard to make it clearer that protest allegations must be
credible and supported by evidence.

Second, Section 885 included a provision for GAO to develop benchmarks
of the cost to DOD of resolving protests and the lost profits of the
awardee during the pendency of a protest. However, during the
preparation of our proposal, we found that sufficient data was
unavailable concerning DOD's protest costs and lost profit rates to
calculate reliable benchmarks. For example, DOD does not track or record
the costs of bid protests because it is not statutorily required to do
so. Additionally, DOD expressed the view that given the low number of
protest of DOD procurements, the costs of tracking such data would
outweigh the benefits.

Third, Section 885 required GAO to propose a process for an unsuccessful
protester to pay the government's protest-related costs and contract
awardee's lost profits. Without sufficient data, however, it was not
possible to create the benchmarks envisioned by Section 885. GAO remains
neutral on creating a fee shifting process. We believe that existing
authorities are sufficient to efficiently resolve and limit the adverse
impacts of protests filed without a substantial or legal factual basis.

Consistent with the requirements of Section 885, however, we discussed
two potential processes and practical and policy implications for
congressional consideration. First, Congress might consider a focused
statutory requirement for DOD to include a contract provision that would
permit DOD to recoup or otherwise withhold profit or fee from where an
incumbent contractor filed a protest that is dismissed as legally or
factually insufficient. Second, Congress might consider authorizing GAO
to require a protester to reimburse DOD for the costs incurred in
handling the protest, as well as any lost profits incurred by the
awardee, whose contract was stayed during the pendency of a protest. The
latter process would constitute a significant departure from GAO's
current statutory authorities and would require significant structural
changes to CICA and GAO's other statutory authorities.

Chairman Sessions, Ranking Member Mfume and other members of the
subcommittee, this completes my prepared statement. I would be pleased
to respond to any questions that you may have.


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find out more @ GAO.gov

GAO-25-108652

Bid Protests:
Key Features & Trends


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For more info, check out our report GAO-25-108652 at: GAO.gov