4 Takeaways: GAO Bid Protest Annual Report to Congress for FY 2022
Yesterday, the U.S. Government Accountability Office ("GAO") published its Bid Protest Annual Report to Congress for Fiscal Year 2022. GAO's annual report is required under the Competition in Contracting Act of 1984 ("CICA") and provides the government contracting community with good insight into GAO's bid protest function. [1]
Despite being just four pages (excluding GAO's letter regarding one instance in which an agency did not follow GAO's recommendation), [2] GAO's report is highly informative because it showcases key bid protest statistics and GAO's most prevalent grounds on which it sustained bid protests during FY22. [3] To that end, government contractors that become familiar with this report – and GAO's bid protest decisions – will likely gain confidence in their "go/no-go" bid protest calculus and the efficacy of the bid protest process.
Below is a snapshot of GAO's bid protest report:
Notable Statistics
Number of Cases – 1,658 cases (down, 1,897 in FY21)
Sustain Rate – 13% (down, 15% in FY21)
Effectiveness Rate – 51% (up, 48% in FY21) [4]
Task Order Protests – 344 (down, 401 in FY21)
Alternative Dispute Resolution – 74 (down, 76 in FY21)
Most Prevalent Grounds For Sustaining Protests
Unreasonable technical evaluation
Flawed selection decision
Flawed solicitation
Takeaways
This year's bid protest report provides some interesting takeaways for government contractors and industry.
First, the report shows that protesters have a 51% chance of obtaining some form of relief at GAO (voluntary corrective action or GAO sustain). This is great news and indicates that GAO's bid protest process works and that procuring agencies are willing to take corrective action to fix errors that were brought to light in a bid protest.
Second, GAO continued to see a hefty volume of protests involving GAO's jurisdiction over task orders (344). And, although this is a dip from last year, this figure appears to be consistent with the increase in best-in-class vehicles, government wide acquisition contracts ("GWAC"), and large multiple award ID/IQ contracts. Moreover, the fact that 20% of bid protests involved task orders shows the strategic importance and competitiveness of task order competitions.
Third, for the second time in three years, a pre-award protest ground appeared on the list of most prevalent grounds – flawed solicitation. This suggests that contractors are more than willing to challenge the terms of a solicitation to ensure a level playing field, and clear solicitation terms, prior to submitting a bid. It also shows that GAO is willing to sustain a pre-award challenge where a solicitation, in some respect, is unreasonable or flawed.
Fourth, GAO continues to see a decline in protests overall – from 2,607 in 2018 to 1,658 in 2022. [5] It is unclear from the report whether companies are filing fewer protests overall, making different choices about the venue in which they file, filing fewer supplemental protests, or some combination of the foregoing. Notably, an increase in corrective action would naturally lead to fewer supplemental protests. It is also possible that the decline, at least recently, is a byproduct of the COVID-19 pandemic and the current economic downshift.
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[1] See 31 U.S.C. § 3554(e)(2) ("Not later than January 31 of each year, the Comptroller General shall transmit to the Congress a report containing a summary of each instance in which a Federal agency did not fully implement a recommendation of the Comptroller General under subsection (b) or (c) during the preceding year. The report shall also describe each instance in which a final decision in a protest was not rendered within 100 days after the date the protest is submitted to the Comptroller General. The report shall also include a summary of the most prevalent grounds for sustaining protests during such preceding year.").
[2] See Northrop Grumman Systems Corporation--Mission Systems, B-419560.6, Aug. 18, 2021, 2021 CPD ¶ 330.
[3] For FY13, Congress added the requirement that GAO include in its annual report a summary of the most prevalent grounds for sustaining bid protests during the preceding year.
[4] The "effectiveness rate" is based on a protester obtaining some form of relief, either as a result of voluntary agency corrective action or GAO sustaining the protest.
[5] GAO's statistical chart is based on "B-" numbers and does not the reflect the total number of procurements that were challenged. In other words, if a protester files a supplemental protest, it adds to the "B-" number assigned to the protest. Thus, the number of procurements challenged is less than the number of protests.
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