The recently released 2021 Bid Protest Annual Report (Report) from the Government Accountability Office (GAO) covers cases filed with the agency, including protests, cost claims, and requests for reconsideration. In this blog, PilieroMazza analyzes what the Report reveals about bid protests at the GAO, including how the information could affect a contractor’s decision to file a protest and its likelihood of success.
Analysis of the Report
The Report shows the number of cases filed is down by 12% when comparing 2021 to 2020 (1,897 cases in 2021 versus 2,149 in 2020). Of the 581 protests resolved on the merits, 85 protests were sustained for a sustain rate of 15%. This sustain rate matches the 15% sustain rate average over the last four years. The percentage of protests that ended in either the GAO sustaining a protest or an agency taking voluntary corrective action—what the GAO calls the “effectiveness rate”—was 48%, which also closely tracks the 46.5% average over the last four years.
In its Report, the GAO also stated the most prevalent reasons for sustaining protests during 2021 were:
- unreasonable technical evaluation;
- flawed discussions;
- unreasonable cost or price evaluation; and
- unequal treatment.
Of these reasons for sustaining protests, flawed discussions and unequal treatment are two that were not prevalent over the last few years. In fact, flawed discussions were not listed as a prevalent ground since Congress added the requirement in 2013 for the GAO to include a summary of the most prevalent grounds for sustaining protests. Similarly, unequal treatment was not listed as a prevalent ground since 2014.
Further, although the percentage of hearings held for fully developed cases remained at 1%, the number of hearings increased from 9 in 2020 to 13 in 2021. Additionally, Alternative Dispute Resolution (ADR) was employed in fewer cases during 2021, but the ADR success rate increased slightly from 82% in 2020 to 84% in 2021.
Takeaways from the Report
The number of protests decreased 12% over the past year and by more than 25% since 2018. As PilieroMazza previously reported, the Department of Defense implemented enhanced debriefings via a class deviation in 2018 with the goal of increasing transparency to give defense contractors better insight into the strengths and weaknesses of their proposals and allowing more time to make an informed decision on whether filing a bid protest would be in their best interests. At least part of the decrease in protests at the GAO may be due to these enhanced debriefings dissuading unsuccessful offerors from protesting when the debriefings provide more details about the basis for their ratings and the award decision.
While the number of overall cases dropped, the Report indicates that protests at the GAO face good odds of obtaining some sort of relief for the protester since nearly half of all protests are likely to result in either a GAO sustain or voluntary corrective action by the agency.
If you have questions about protests at the GAO, please contact Jackie Unger or Anna Sullivan, the authors of this blog, or a member of PilieroMazza’s Bid Protests or Government Contracts practice groups.