This week, the U.S. Government Accountability Office (“GAO”) published its annual report to Congress, detailing statistics on the bid protests filed during the 2017 fiscal year. The number of cases filed with GAO (including protests, supplemental protests, cost claims, and requests for reconsideration) was down 7% from fiscal year 2016. 22% of the cases filed were decided on the merits (meaning GAO issued a decision), and 99 protests were sustained, for a sustain rate of 17% of the cases decided on the merits. This 17% sustain rate is less than 2016’s 23% sustain rate, but still is higher than the sustain rates in fiscal years 2014 and 2015. The percentage of protests that ended in either GAO sustaining a protest or an agency taking voluntary action – what GAO calls the “effectiveness rate” – was 47%, which was the highest effectiveness rate in recent years.
In its report, GAO also stated that the most prevalent reasons for sustaining protests during fiscal year 2017 were:
(1) unreasonable technical evaluation;
(2) unreasonable past performance evaluation;
(3) unreasonable cost or price evaluation;
(4) inadequate documentation of the record; and
(5) flawed selection decision.
These reasons for sustaining protests are mostly the same as the most prevalent reasons for sustaining protests in fiscal year 2016, with the exception of “inadequate documentation of the record,” which was not one of the most prevalent reasons for sustaining protests in fiscal year 2016.
Overall, GAO’s report indicates that nearly half of protests are likely to result some kind of relief to the protester, either through a GAO sustain or voluntary corrective action by the agency. This may be comforting to protesters, but frustrating to companies whose awards have been protested. Moreover, GAO seems to be sustaining more protests in fiscal years 2016 and 2017 than in prior years, but time will tell if these higher sustain rates continue again in fiscal year 2018.
About the Author: Julia Di Vito practices in the areas of government contracts, litigation, employment, and labor. She may be reached at [email protected].