At the end of each fiscal year, the GAO submits its Bid Protest Annual Report to Congress. This report details the number of cases received by GAO (which includes protests, cost claims, and requests for reconsideration) and a summary of the overall outcomes of the cases.
In FY2018, 2,607 cases were filed at the GAO, of those 2,474 were bid protests (the remaining approximately 130 cases being cost claims and requests for reconsideration). Only 622 of those cases reached a decision on the merits, with only 92 of those cases being sustained (a mere 15% of cases).
The effectiveness rate which includes a protester obtaining some form of relief from the agency, including corrective action or the GAO sustaining the protest, was slightly down from FY2017 at 44%. While the sustain rate is slightly down from the 47% in FY2017 (which only amounted to a decrease in seven cases), the statistics are relatively similar to that of the preceding year.
However, the more important takeaway this year may be the GAO’s most prevalent grounds for sustaining protests. The GAO’s annual bid protest reports have been including this information since the implementation of the FY2013 NDAA, which required the GAO to include in its annual report to Congress a summary of the most common grounds for sustaining protests during the year.
For FY2018, the most prevalent reasons for sustaining protests according to the GAO were:
- Unreasonable technical evaluation
- Unreasonable cost or price evaluation
- Flawed selection decision
Of note is the difference between the FY2018 most prevalent grounds and the FY2017 most prevalent grounds. While unreasonable technical evaluation remains the most prevalent reason for sustaining a protest for the third year in a row, flawed selection decision was bumped up to third most prevalent ground from fifth in FY2017. Also noteworthy is the absence of unreasonable past performance evaluation form this list. Unreasonable past performance evaluation has been the second most prevalent ground for sustaining a protest for the most past three fiscal years (FY2015, FY2016, and FY2017).
Thus, while it remains to be seen if the absence of sustained protests on the ground of unreasonable past performance evaluation will continue into FY2019, it remains a protester’s best bet to allege an unreasonable technical evaluation to get relief from the GAO, even if the chances of a sustain remain low overall.
About the Author:
Heather Mims is an associate attorney at Centre Law & Consulting. Her practice is primarily focused on government contracts law, employment law, and litigation. Heather graduated magna cum laude from the George Mason School of Law where she was the Senior Research Editor for the Law Review and a Writing Fellow.