GAO’s annual bid protest report is a fall tradition for federal contracting attorneys. It’s perhaps not quite as tasty as stuffing in my book, but always interesting. In it, GAO summarizes its slate of bid protests for the previous fiscal year, and we can glean insights from how the protest numbers have changed from prior years.
Here are some key points from this year: (1) the key effectiveness metric, showing numbers of sustains and corrective actions at GAO, was up again to 51% for the 2022 fiscal year and (2) total bid protest numbers are down slightly, continuing a trend from the last few years.
The annual bid protest 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. But unlike recent years, one agency declined to follow GAO’s recommendations.
Interestingly, one agency declined to carry out the recommendations made by GAO in connection with a bid protest. This agency was the Navy. This is a reminder that the GAO can only make recommendations to agencies, it can’t order them to do anything. This is something that has not happened for a few years, so it’s quite rare. The protester renewed its protest at the Court of Federal Claims, and the Navy did take corrective action to take another look at the evaluations and correct any errors, consistent with what GAO recommended. It’s an isolated incident and the exception proves the rule: agencies generally follow GAO’s recommendations.
Cue the Numbers
- 1658 protests. This is down from 1897 in 2021 and 2149 protests in 2020. Compared to 2021, total protests are down about 12%.
- 455 – Number of cases decided on the merits, rather than through dismissal.
- 59 – Number of sustained protests
- 13% – Percentage of sustained protests, a little bit lower than last year but fairly similar to the past few years.
- 51% – Effectiveness rate (percentage sustained or where agency took corrective action). This is up a little bit from the prior year but shows about half of all protests result in a sustain or corrective action. This roughly 50% effectiveness rate has been the norm for the last few years.
- Less than 1% – Percentage of cases with hearings. Hearings are not common at GAO.
Many have theorized why protests are done. For instance, the enhanced debriefings implemented by DoD provide more information about why companies lost an award. This may eliminate those protests where a company just simply wanted more information. Anecdotally, I think there is truth to this theory. I have personally seen protests avoided where a company found out through a debriefing that its proposal was missing some key information.
Another possible reason for reduced protests is simply that there are less federal contractors over all and fewer contracts. As larger companies have consolidated, there are fewer small businesses. And, 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).
All of these theories may be true, but some of this may be simply random decreases in protests overall, or a multitude of other reasons. For instance, some companies prefer the more robust discovery available at the Court of Federal Claims.
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 the agency improperly assessed a weakness in the protester’s proposal under the corporate experience factor, which was directly contradicted by the contents of the protester’s proposal that showed the protester had the required experience.”
- Flawed selection decision, “where the awardee never submitted a complete quotation and the agency relied upon part of a quotation from the awardee’s previously excluded team member in selecting the awardee.”
- Flawed solicitation, where “where the solicitation contained obvious conflicting information as to whether certain requirements were due at the time of proposal submission or after award.”
We at SmallGovCon can help you decide if a GAO protest may be right for your company, based on what types of arguments can be successful at GAO. It will be interesting to see if protest numbers continue to go down, or if next year will show that the decrease has leveled off. We’ll keep you updated as we follow the trends on GAO protests.
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