GAO Bid Protests Rise 5% In FY 2012

Contractors filed 2,475 GAO bid protests in Fiscal Year 2012, a five percent increase from the prior year, according to the GAO’s annual bid protest report to Congress.  The GAO’s annual report indicated that “sustain” decisions were up slightly from the prior year, while the overall “effectiveness rate” of protests–a combination of sustain decisions and agency corrective actions–held steady at 42%.

Meanwhile, the VA was the only procuring agency to ignore GAO recommendations–something the VA did repeatedly in the Aldevra line of cases.

Of the 2,475 GAO bid protests filed in FY 2012, only 570 were decided on the merits–that is, only 570 resulted in a written decision sustaining or denying the protest.  So what happened to the rest?

In 106 cases, the GAO used Alternative Dispute Resolution to resolve a protest, with a reported success rate of 80%.

More commonly, procuring agencies took corrective action on their own accord.  By my math, voluntary corrective action occurred in almost a quarter of GAO bid protests filed in FY 2012.  In addition, although not reflected in the GAO’s report, many GAO bid protests are dismissed for technical reasons: untimeliness, lack of standing, and so on.

The GAO held oral hearings in just 56 cases, or 6.1% of protests, in FY 2012.  Percentage-wise, this was a slight decline from the 8% hearing rate in FY 2011, and well off the 12% mark of FY 2009.  The low rate of oral hearings is often surprising to first-time protesters, who sometimes expect the GAO bid protest process to resemble a Perry Mason courtroom.  In fact, the vast majority of GAO bid protests are decided solely on the basis of written filings.

Finally, the GAO’s FY 2012 report indicates that the VA was the only agency to disregard GAO’s bid protest recommendations during the prior fiscal year.  In total, the VA disregarded seven GAO decisions, representing 18 protests (several were consolidated for decision).  All of the protests involved the question of whether the VA must consider a set-aside for service-disabled veteran-owned small businesses before procuring supplies or services through the GSA Schedule.  Let’s all hope that this question is resolved in the favor of SDVOSBs by the time the next GAO annual report comes out.

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