The U.S. Government Accountability Office (“GAO”) recently released its annual Bid Protest Report Annual Report (“Report”). The Report, which is published each year to Congress, summarizes key statistics and data for Fiscal Year 2019 bid protest activity. The Report contains some valuable insight into current bid protest trends and developments at the GAO.
What are the takeaways of the 2019 report?
- Of particular note, for the second year in a row, the so-called “effectiveness rate” remained steady at 44%. This represents the percentage of all protests closed in 2019 in which the protester obtained some form of relief from the agency—either as voluntary agency corrective action or corrective action in response to a sustained protest. This means that of the 2,200 protests that the GAO closed in 2019, GAO issued decisions sustaining 77 protests (which equaled 13% of the cases that were decided on the merits) and agencies voluntarily took corrective action in response to approximately 890 other protests. In the past five fiscal years, the GAO’s annual effectiveness rate for protesters has hovered steadily between 44% and 47%. The fact that nearly half of all protesters obtained some form of relief demonstrates that the GAO remains an effective forum for disappointed contractors seeking relief.
- The Report also notes that the most prevalent reasons for sustaining protests during 2019 were: (1) unreasonable technical evaluation; (2) inadequate documentation of the record; (3) flawed selection decision; (4) unequal treatment; and (5) unreasonable cost or price evaluation. By comparison, in 2018, the most prevalent grounds for sustaining protests were (1) unreasonable technical evaluation; (2) unreasonable cost or price evaluation; and (3) flawed selection decision.
- The Report also included a note on the impact of the 35 day Government shutdown that began in December 2018 and ended in January 2019. The number of protests filed in 2019 dropped by 16% as compared to 2018, which could be attributed to the Government shutdown. However, despite the length of the shutdown, and because the GAO remained open during this period, the GAO continued to decide all protests within 100 calendar days for the period that the relevant portion of the government was funded.
- Finally, the Report is required to identify each instance in which an agency did not fully implement a GAO bid protest recommendation. The GAO reported that there were no such instances in 2019. This is the fourth consecutive year in which agencies fully implemented each of the GAO’s recommendations.
Kristen M. Chatterton