As we look forward to fall traditions like turkey and mashed potatoes, pumpkin spice, and leaf peeping, don’t sleep on another fall tradition, the GAO bid protest report. This report is GAO’s summary of bid protests for the previous fiscal year. It contains some important insights for how GAO bid protest numbers have changed from prior years. Of course, many bid protests are filed at the Court of Federal Claims, so this is only one part of the picture.
Here are some key points from this year: (1) the key effectiveness metric, showing numbers of sustains and corrective actions at GAO, was similar to prior years at 52% for the 2024 fiscal year and (2) total bid protest numbers were down slightly from 2023 but a little above the number for 2022. Numbers are still lower than in 2021 and 2020.
The annual bid protest report is based on 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.
One important point about the GAO bid protest process: GAO met its 100-day deadline to process a bid protest in all cases. And unlike last year, there one was decision where the State Department did not follow GAO’s recommendations in connection with a bid protest. That case concerned a discrepancy between State regulations and SAM registration requirements for registering a joint venture. So, it was somewhat unique to that agency.
GAO Protest Numbers
- 1803 cases including 1740 total protests (the rest are requests for costs and reconsideration). This is down from 2025 in FY 2023 but up from 1658 in 2022. Compared to 2023, total protests are down about 11%.
- 387 – Number of cases decided on the merits, rather than through dismissal.
- 61 – Number of sustained protests
- 16% – Percentage of sustained protests, quite a bit lower than last year (due to the CIO-SP4 procurement), but similar to 4 out of the last 5 years.
- 52% – Effectiveness rate (percentage sustained or where agency took corrective action). This is down some from the prior year but still shows that over half of all protests result in a sustain or corrective action. A roughly 50% effectiveness rate has been the norm for the last few years. In the prior year a large number of sustained protests were related to a large number of protests of one single procurement.
- 0.2% – Percentage of cases with hearings. Hearings are not common at GAO, and the rate for 2024 stayed about at the same level.
Cases and protests are down from FY 2023. This is likely due to a spike in cases from the the Department of Health and Human Services’ award of Chief Information Officer-Solutions and Partners 4 (referred to as “CIO-SP4”) government-wide acquisition contract. That involved sustaining 93 protests in one decision and 26 protests in a related decision. GAO confirmed that this one case is responsible for a lot of the increase.
The Court of Federal Claims (COFC) last released its case report for FY 2023. That report showed that there were 169 cases filed in FY 2023. So, there are fewer cases in COFC, but the bid protest numbers appear to be growing at COFC. For instance, the number of bid protests filed in FY 2022 was 123. That may explain the trend of lower cases at GAO.
Other explanations include (1) enhanced debriefings implemented by DoD that provide more information about why companies lost an award; (2) less federal contractors over all and fewer contracts. As larger companies have consolidated, there are fewer small businesses; (3) category management has been pegged by some as resulting in a decrease in overall contracts, as more contracts are pushed to government wide acquisition contracts (or GWACs).
Why Are Cases Sustained?
The report summarizes the common reasons for sustaining protests at GAO. These are helpful to know what types of issues are most likely to get traction at GAO, although GAO is not too generous on detail. The three most common grounds (and an example of each) were:
- Unreasonable technical evaluation, such as where “where the contemporaneous record did not support the agency’s conclusion that the awardee’s quotation met solicitation requirements under the management plan factor pertaining to procedures for protecting certain data, because the awardee’s quotation in fact did not address how that data would be protected”
- Flawed selection decision, “where the determination was based on a flawed underlying evaluation, the agency failed to look beyond assigned adjectival ratings to qualitatively compare quotations, and the agency did not document its rationale for its source selection conclusions”
- Unreasonable cost or price evaluation, “where the record did not show that the agency considered whether the protester’s technical approach could reasonably be performed at the proposed price”
We at SmallGovCon can help you decide if a GAO or COFC protest may be right for your company, based on what types of arguments can be successful at GAO versus COFC and the process at each tribunal. It will be interesting to see if protest numbers continue to go up next year. We’ll keep you updated as we follow the trends on GAO protests.
Questions about this post? Email us. Need legal assistance? Call us at 785-200-8919.
Looking for the latest government contracting legal news? Sign up here for our free monthly newsletter, and follow us on LinkedIn, Twitter and Facebook.