The holiday season is upon us, time for cherished traditions. If you’re anything like us at Koprince Law, one of these traditions is reviewing the GAO’s annual bid protest report.
The overall picture I got from the report, while perhaps not the best clickbait, is that GAO bid protest figures have remained remarkably steady over the past few years. As it has been for the last few years, close to 50% of protests succeed. This stability is a story worth repeating.
The GAO Bid Protest Annual Report to Congress for Fiscal Year 2018 fulfills GAO’s statutory duty to report to Congress (1) each instance in which a federal agency did not fully implement a recommendation made by GAO (2) if any bid protest decision was “not rendered within 100 days after the date the protest is submitted,” and (3) “include a summary of the most prevalent grounds for sustaining protests.” It also summarizes the general statistics for bid protest decisions.
If you were holding your breath on these required reports, you can stop. GAO met the 100-day deadline in all cases and the agencies followed all of GAO’s recommendations. This is good and shows the GAO bid protest system is efficient and respected by agencies.
The main grounds for sustaining protests are not too revealing, as they are pretty generic, despite additional statutory instructions (in the 2017 NDAA) to provide these grounds. The three most common grounds were:
- Unreasonable technical evaluation
- Unreasonable cost or price evaluation
- Flawed selection decision
Here are some key numbers from the report:
- 2,474 – Number of total protests. The total number of cases was 2,607, but this larger figure includes claims for costs and requests for consideration.
- 622 – Number of cases decided on the merits, rather than through dismissal.
- 92 – Number of sustained protests
- 15% – Percentage of sustained protests
- 44 – Effectiveness rate (percentage sustained or where agency took corrective action)
- 0.51% – Percentage of cases with hearings
The effectiveness rate is an important metric. As GAO tells it, the effectiveness rate can be viewed as the percentage of protests in which a protester succeeded in “obtaining some form of relief from the agency” either through corrective action or a sustained protest. A corrective action is an admission from the agency that there was some flaw in the evaluation and the agency counsel thought it would lose at GAO.
In other words, the effectiveness rate is a measure of whether the protester succeeded in getting another chance at winning the award.
The 44% effectiveness rate for 2018 is right around the rate for the last 4 years, which ranged from 43% to 47%.
Interestingly, the hearing rate has decreased every year for the last four years, going from 4.7% of cases in 2014 to 0.51% this year. And this is not a consequence of there being more cases filed, as this year’s total of 2,607 cases is right in line with the average of 2,646 over the prior four years. This statistic demonstrates that GAO is relying on hearings less every year (not that GAO held that many hearings in the past).
The bottom line, contrary to some calls for reform arguing that there are too many bid protests, is that the total number of protests and the protest success rate have been quite steady over the last five years. The only thing that has really changed is there are less hearings being held.
As my colleague Steven Koprince has astutely observed, the problem might not be that there are too many protests. The problem might be “that evaluators are messing up a lot of source selections.” But that is not an issue that bid protest reform can address.