By Joshua Duvall via LinkedIn
Last week, the U.S. Government Accountability Office (“GAO”) published its much anticipated Bid Protest Annual Report to Congress for Fiscal Year 2023. GAO’s annual report is required under the Competition in Contracting Act of 1984 (“CICA”) and provides the government contracting community with good insight into GAO’s bid protest function. [1] Despite being just four pages, GAO’s report is highly informative because it showcases key bid protest statistics and GAO’s most prevalent grounds on which it sustained bid protests during FY23.
To that end, government contractors that become familiar with this report – and, more broadly, lessons learned from GAO’s bid protest decisions – will likely gain confidence in their “go/no-go” bid protest calculus and the efficacy of the bid protest process.
Below is a snapshot of GAO’s bid protest report:
Notable Statistics
- Number of Cases – 2,025 cases (up, 1,658 in FY22)
- Sustain Rate – 31% (up, 13% in FY22) [2]
- Effectiveness Rate – 57% (up, 51% in FY22) [3]
- Task Order Protests – 368 (up, 344 in FY22)
- Alternative Dispute Resolution – 69 (down, 74 in FY22)
Most Prevalent Grounds For Sustaining Protests
- Unreasonable technical evaluation
- Flawed selection decision
- Unreasonable cost or price evaluation
Takeaways
This year’s bid protest report provides some interesting takeaways for government contractors and industry.
First, and excluding of the massive number of CIO-SP4 protests, it appears GAO saw just a slight uptick in the number of protests from FY22. According to the report, while GAO handled 1,957 protests, that number would be 1,603 if we were to exclude the 354 protests under the “B-number” for the CIO-SP4 procurement. That new figure is a touch more from FY22, where GAO saw 1,595 protests, but still down from FY21, where GAO saw 1,816 protests. And, while we may never fully understand the impetus causing this downward trend at GAO (COVID-19 pandemic, sluggish economy, fewer procurements due to consolidation), anecdotally, we understand that the Court of Federal Claims is seeing the opposite: an uptick in bid protests. It will be interesting to see how the protest numbers shake out in years to come.
Second, the report shows that GAO’s sustain rate drastically increased to 31% from 13%. This increase is largely due to the fact that GAO sustained 119 protests relating to the CIO-SP4 procurement. Notably, if we exclude those 119 protest sustains from the “Merit (Sustain + Deny) Decisions” and “Number of Sustains” cells in the chart (decreasing the numerator and denominator), the sustain rate would be 14% (69/489), which is still higher than FY22. Indeed, even if we simply isolate the numerator – i.e., the “Number of Sustains” – FY23 would show 69 sustains, which is also more than the 59 sustains from FY22.
Third, while protesters have a 57% chance of obtaining some form of relief at GAO (voluntary corrective action or GAO sustain), that percentage, like the sustain rate, was inflated because of the significant number of protests related to the CIO-SP4 procurement. Regardless, the effectiveness rate is still great news – as it has been for several years now – and indicates that GAO’s bid protest process works and that procuring agencies are willing to take corrective action to fix errors that were brought to light in a bid protest.
Fourth, GAO continued to see a significant number of protests involving GAO’s jurisdiction over task orders, 368, which was an increase from the 344 in FY22. Although the number as gone down over the last couple of years, perhaps due to the COVID-19 pandemic, when looking at the past decade, the numbers appear to be on an incline. With the continued prevalence of best-in-class, government wide acquisition contracts (“GWAC”), and other large multiple-award ID/IQ contracts, it will be interesting to see how these figures take shape over the next half-decade. Notably the report also indicates that, for FY23, the percentage of task order protests is around 18% (368/2,041), which ostensibly highlights the strategic importance and competitiveness of task order competitions.
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[1] See 31 U.S.C. § 3554(e)(2).
[2] This figure was expected. As GAO noted, the “22 percent increase in cases filed during the 2023 fiscal year” was largely due to the significant number of protests regarding the Department of Health and Human Services’ award of Chief Information Officer-Solutions and Partners 4 (“CIO-SP4”) government-wide acquisition contracts.
[3] The “effectiveness rate” is based on a protester obtaining some form of relief, either as a result of voluntary agency corrective action or GAO sustaining the protest.
