Earlier this month, GAO issued its Bid Protest Annual Report to Congress for Fiscal Year 2019. The Annual Report provides data on the protests filed with the GAO, including a summary of the most common grounds for sustaining protests.
GAO received 2,198 cases in FY2017, as compared to 2,607 the previous year and a 10-year low. While we don’t have specific data on this figure, a number of factors likely contributed to this decline, such as the 35-day partial government shutdown in the beginning in 2019 that delayed some procurements and took a financial toll on many contractors, the $25M threshold for DoD task orders that took effect in 2018, and DoD’s implementation of enhanced debriefing procedures that provide contractors with additional information about the award decision. It will be a few years before we see whether this lower figure is part of a broader trend.
GAO sustained 13% of protests filed in FY2019. The most common grounds for sustaining protests were: “(1) unreasonable technical evaluation; (2) inadequate documentation of the record; (3) flawed source selection decision; (4) unequal treatment; and (5) unreasonable cost or price evaluation.” This list only takes into account those protests in which GAO actually reaches a decision on the merits; it does not include those protests that are resolved by voluntary agency corrective action. GAO held hearings in only 21, or 2%, of its cases.
While the sustain rate of protests that reached a decision was only 13%, it is notable that in 44% of the protests filed, the protestor obtained some form of relief from the agency – either as a result of voluntary corrective action by the agency or the agency taking corrective action after GAO sustained the protest. Because the sustain rate is relatively low, this figure shows that the agency is voluntarily taking corrective action quite often. While corrective action doesn’t guarantee the protestor will ultimately receive the contract, it does give them a second chance at award. This overall effectiveness rate has remained fairly steady over the last several years.
It is important to note that, in most instances, GAO does not learn why the agency is taking corrective action, because agencies are not required to report their reasoning for taking voluntary corrective action to GAO. Typically, the agency takes corrective action because it has determined that there was a flaw somewhere in the procurement process that needs to be addressed. It may be related to issues raised by the protestor, or it may be because of an unrelated issue that was identified by agency legal counsel once they’ve taken a closer look at the procurement.
GAO’s report also highlighted its dedication to resolving bid protests within the 100 day deadline. Although GAO remained open during the partial government shutdown, deadlines for affected agencies were tolled during that time period. When the shutdown ended, GAO needed to extend bid protest deadlines for only eight protests from affected agencies, and all of those protests were decided within the 35-day deadline extension.
The deadlines to file a bid protest are very short. If you do not receive a contract award and want to assess the merits of a potential protest, you should not delay in contacting legal counsel.
Berenzweig Leonard is teaming up with Red Team Consulting for a monthly newsletter featuring upcoming contracts, key protest decisions, legal updates, events, and more. This post was published in the November 2019 Monthly Insights newsletter. To sign up for our govcon newsletters, please email [email protected].