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The U.S. Government Accountability Office has released its "GAO Bid Protest Annual Report to Congress for Fiscal Year 2019," which shows the effectiveness rate was 44%, the same number in FY 2018 and slightly below the record high numbers in FY 2016 and 2017.

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In its November 5, 2019 report, GAO stated that during the 2019 fiscal year, it received 2,198 cases (down 16% from 2,607 cases in FY 2018). Of the protests resolved on the merits, GAO sustained 13%, or 77 B-numbered protests out of 587 protests resolved by decisions on the merits (sustained and denied). The 13% sustained rate is slightly below the average for the past five years (16%). Of 2,200 cases closed, 373 were attributable to task order protests.

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The Most Common Sustained Ground: Technical Evaluations

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GAO stated that its review shows that the most prevalent reasons for sustaining protests during FY 2018 were: “(1) unreasonable technical evaluation; (2) inadequate documentation of the record; (3) flawed selection decision; (4) unequal treatment; and (5) unreasonable cost or price evaluation.”

An unreasonable technical evaluation has been the most commonly sustained ground, according to the GAO annual reports, in each year since FY 2016. This list again demonstrates that while GAO will not sustain a protest based on “mere disagreement” with an agency evaluation, it will fairly consider a protester’s arguments based on an unreasonably flawed evaluation, including, as most frequently sustained in each of the last four years according to GAO’s reports, an unreasonable technical evaluation.

The number of cases filed, 2,198, is the lowest number since FY 2008, representing a significant drop from recent years, including the high of 2,789 in FY 2016. There may be several possible explanations for this drop in cases filed, including (1) relatively high levels of total expenditures on government contracts last year; (2) a government shutdown of 35 days from December 2018 to January 2019, as described in the GAO report; (3) the new GAO filing fee and docketing system effective in May 2018; (4) the change in GAO’s task order threshold for Department of Defense contracts, raised to $25 million in the FY 2017 NDAA and implemented in the FAR in May 2018; and (5) a high effectiveness rate leading to increased use of agency protest procedures.

Significant Chance of Relief for Protester

The most important number in the annual report may be the effectiveness rate, which GAO notes is “based on a protester obtaining some form of relief from the agency, as reported to GAO, either as a result of voluntary agency corrective action or our Office sustaining the protest.” GAO also notes that “this figure is a percentage of all protests closed this fiscal year.” With 2,200 protests closed in FY 2019, the reported effectiveness rate of 44% means that GAO protesters received corrective action (or a sustained decision) in about 968 protest cases.

The recent effectiveness rates (on average, 45% over the last five years) indicate that, including agency corrective actions and sustained decisions, a GAO bid protest has a significant chance of resulting in some kind of relief for the protester. As always, GAO notes that many protests do not reach a decision on the merits due to voluntary corrective action by agencies, and that “agencies need not, and do not, report any of the myriad reasons they decide to take voluntary corrective action.”

The effectiveness rate has slowly increased from 33% in FY 2001, the first year for which GAO reported the statistic, to the record highs of 46% in FY 2016 and 47% in FY 2017, and 44% since then, reflecting the combination of corrective action and sustained decisions, and highlighting the importance of corrective action as a potential remedy.

When pursuing a protest, contractors are more likely to receive relief through corrective action (for example, an agency’s decision to re-evaluate a proposal, permit revised proposals or reinstate a proposal into a competitive range) than a sustained decision. Depending on the agency’s actions taken during corrective action and on the final result, the protester may or may not consider the ultimate outcome to be a victory – but a protest resulting in corrective action does give the protester a chance to have its arguments heard, and often, its proposal reconsidered by the agency. Thus, protesters should pursue their arguments with potential agency corrective action remedies in mind.

Joseph R. Berger 202.263.4193 <a href="mailto:Joseph.Berger@ThompsonHine.com">Joseph.Berger@ThompsonHine.com</a>

Tom Mason 202.263.4168 <a href="mailto:Thomas.Mason@ThompsonHine.com">Thomas.Mason@ThompsonHine.com</a>

Francis E. Purcell, Jr. 202.263.4118 <a href="mailto:Chip.Purcell@ThompsonHine.com">Chip.Purcell@ThompsonHine.com</a>

Ray McCann 202.263.4152 <a href="mailto:Ray.McCann@ThompsonHine.com">Ray.McCann@ThompsonHine.com</a>

Mona Adabi 202.263.4147 <a href="mailto:Mona.Adabi@ThompsonHine.com">Mona.Adabi@ThompsonHine.com</a>

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https://admin.thompsonhine.com/wp-content/uploads/2022/04/Government_Contracts_Update_-_GAO_Bid_Protest_Effectiveness_Rate_Remains_44_Percent_for_Fiscal_Year_2019.pdf

GAO Bid Protest Effectiveness Rate Remains 44% for Fiscal Year 2019

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