On December 23, 2020, GAO issued its Bid Protest Annual Report to Congress for Fiscal Year 2020. 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 2,149 cases in FY2020. This figure is relatively consistent with FY2019, in which GAO received 2,198 cases, which was significantly lower than in 2018 and had been a 10-year low. However, it will be a few years before we see whether this is part of a broader trend, or the result of factors unique to those years, such as the 35-day shutdown in 2019 and the pandemic in 2020.
GAO sustained 15% of protests filed in FY2020. The most common grounds for sustaining protests were: “(1) unreasonable technical evaluation; (2) flawed solicitation; (3) unreasonable cost or price evaluation; and (4) unreasonable past performance 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 9, or 1%, of its cases.
While the sustain rate of protests that reached a decision was only 15%, it is notable that in 51%, or more than half, 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 government voluntarily takes 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, although this is the first time in recent history that we’ve seen it above the 50% mark.
There was also a significant increase in the use of alternative dispute resolution (ADR) in FY2020, with GAO conducting ADR in 124, or just under 6%, of its cases. By comparison, in FY2019, GAO used ADR in just under 2% of protests filed.
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 reported that there were no instances in which a federal agency did not fully implement a recommendation made by GAO in connection with a bid protest in FY2020. GAO’s report also highlighted its dedication to timely resolving bid protests, as all protests were resolved within the 100-day deadline.
The deadlines to file a bid protest at GAO are very short. If you want to assess the merits of a potential protest, you should not delay in contacting legal counsel.
Stephanie Wilson is a Partner and Co-Director of Government Contracts at Berenzweig Leonard, LLP. Stephanie can be reached at swilson@berenzweiglaw.com.