GAO has released its annual bid protest report. Along with mashed potatoes and stuffing, it’s one of our favorite holiday traditions at SmallGovCon. This report came over a month earlier than last year, making this more of a Thanksgiving treat than Christmas this year.
A couple key takeaways are (1) the key effectiveness metric, showing numbers of sustains and corrective actions at GAO, was 48% for the 2021 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 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.
Here are some key numbers from the report:
- 1,816 protests. This is down from 2,071 in 2019 and 2,052 protests in 2020. Compared to 2019, total protests are down about 12%. Overall, number of protests are definitely on a downward trend, but the decrease appears to be leveling off.
- 581 – Number of cases decided on the merits, rather than through dismissal.
- 85 – Number of sustained protests
- 15% – Percentage of sustained protests, the same as last year and fairly similar to the past few years.
- 48% – Effectiveness rate (percentage sustained or where agency took corrective action). This is down a tiny bit from last year but shows about half of all protests result in a sustain or corrective action
- 1% – Percentage of cases with hearings. Hearings are not common at GAO.
Why Are Cases Sustained?
The report summarizes the main grounds 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 four most common grounds (and an example of each) were:
- Unreasonable technical evaluation, such as “where the agency assessed a strength in the awardee’s proposal based on the agency’s flawed understanding of the awardee’s proposed staffing approach.”
- Flawed discussions, where “the agency engaged in unequal discussions when it conducted another round of discussions with the awardee, but not with the protester, which allowed the awardee to revise its proposal to provide information necessary for the agency to determine the acceptability of its proposal.”
- Unreasonable cost or price evaluation, where “the agency’s cost realism evaluation was unreasonable where the agency conceded that there was an error with its evaluation and where the record did not support the agency’s upward adjustment of the protester’s proposed costs and the agency’s failure to adjust some of the awardee’s proposed costs.”
- Unequal treatment, where “the agency evaluated quotations in a disparate manner when it assessed a strength in the awardee’s quotation, but not in the protester’s quotation, for substantively indistinguishable features of the vendors’ employee retention plans)”.
We at SmallGovCon will be interested 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 posted as we follow the trends on GAO protests.
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