2023 Bid Protest Report, Success Rate Up, Total Protests Up a Little Bit

One of our favorite fall traditions is back. No, not gorging on stuffing after a turkey trot. Rather, it’s time for GAO’s annual bid protest report. This report is GAO’s summary of bid protests for the previous fiscal year. It contains some key insights for 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 even higher to 57% for the 2023 fiscal year and (2) total bid protest numbers are up slightly, reversing a downward trend in total protest numbers 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. And unlike last year, all agencies followed GAO’s recommendations in connection with bid protests.

GAO Protest Numbers

  • 2025 cases including 1,957 protests. This is up from 1658 in 2022 and 1897 in 2021. Compared to 2022, total protests are up about 22%.
  • 608 – Number of cases decided on the merits, rather than through dismissal.
  • 188 – Number of sustained protests
  • 31% – Percentage of sustained protests, quite a bit higher than last year, for reasons explored below.
  • 57% – Effectiveness rate (percentage sustained or where agency took corrective action). This is up a quite a bit from the prior year but shows 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. As explained below, this may reflect sustains in a large number of protests of one single procurement.
  • 2% – Percentage of cases with hearings. Hearings are not common at GAO, but the rate went up a bit this past year.

Protests are overall up from last year but down in number from a few years back. For instance, in 2018 there were 2,474 protests filed. However, the total number of protests filed has increased from last year. This may indicate an increased number of contractors willing to file protests, or the number of protests have plateaued. We’ll have to see how the numbers fall out next year to see if the increase in protests becomes a trend.

Note that some procurements can be protested by many companies, and each is counted as a separate protest and also a separate decision (sustain, denial, or dismissal). So, a few protests joined by many protesters can increase overall numbers. The GAO report singled out the Department of Health and Human Services’ award of Chief Information Officer-Solutions and Partners 4 (referred to as “CIO-SP4”) government-wide acquisition contracts; a single procurement for the award of hundreds of information technology services contracts. 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.

As for why protests are down from years past, we have written about the enhanced debriefings implemented by DoD that provide more information about why companies lost an award. This may eliminate those protests where a company just simply wanted more 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:

  1. Unreasonable technical evaluation, such as where “the agency’s record and responses to the protests failed to show the agency reasonably validated all proposed self-scores or reasonably established cutlines for socio-economic categories to determine advancement of proposals past phase one of competition.”
  2. Flawed selection decision, “where the agency failed to meaningfully look behind the adjectival ratings and adequately document reasons for finding the protester’s and awardee’s proposals technically equal before making award to the lowest-priced offeror.”
  3. Unreasonable cost or price evaluation, “where the agency was required to review indirect rates for realism, but the agency instead improperly relied on the awardee’s business judgments and applied fair and reasonable price analysis considerations in lieu of assessing the realism of the awardee’s indirect rates”

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 up next year. We’ll keep you updated as we follow the trends on GAO protests.

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