• Joshua Duvall

4 Takeaways: GAO Bid Protest Annual Report to Congress for FY 2020

Yesterday, the U.S. Government Accountability Office ("GAO") published its Bid Protest Annual Report to Congress for Fiscal Year 2020. Notably, GAO's annual report is required under the Competition in Contracting Act of 1984 ("CICA") and provides good insight into GAO's bid protest function. [1]


Despite being just four pages, GAO's report is highly informative because it provides insight into key bid protest statistics and the most prevalent grounds on which GAO sustained bid protests. To that end, contractors that become familiar with this information – and GAO's bid protest decisions – will likely gain confidence in making "go/no-go" bid protest decisions.


Below is a snapshot of GAO's report:


Notable Statistics


  • Number of Protests – 2,052 (down, 2,071 in FY19)

  • Sustain Rate – 15% (up, 13% in FY19)

  • Effectiveness Rate – 51% (up, 44% in FY19) [2]

  • Task Order Protests – 417 (up, 373 in FY19) [3]

  • Alternative Dispute Resolution – 123 (up, 40 in FY19)


Most Prevalent Grounds For Sustaining Protests


  1. Unreasonable technical evaluation

  2. Flawed solicitation

  3. Unreasonable cost or price evaluation

  4. Unreasonable past performance evaluation


Takeaways


This year's bid protest report provides some interesting takeaways for government contractors and industry.


First, protesters have just over a 50/50 chance of obtaining some form of relief at GAO (voluntary corrective action or GAO sustain). [4] This is great news and shows that GAO's bid protest process works.


Second, GAO continued to see an upward trend in task order protests (417). This appears to be consistent with the increase in use of best-in-class contracts and larger, multiple award ID/IQ contracts. Moreover, the fact that approximately 20% of protests involved task orders shows the strategic importance and competitiveness of task order work. As a reminder, GAO's task order jurisdiction is $25 million for DoD, NASA, and the Coast Guard and $10 million for civilian agencies.


Third, the threefold increase in ADR suggests that protesters, GAO, and agency officials were open to resolving protests without waiting for GAO to issue a decision. Only time will tell whether this trend will continue into FY21 or whether it was simply a byproduct of the numerous challenges associated with the COVID-19 pandemic and telework.


Fourth, and finally, for the first time since GAO started reporting its most prevalent grounds for sustaining protests, a pre-award ground appeared on the list. [5] This suggests that protesters are more than willing to challenge solicitations to ensure that the playing field is level prior to bidding. It also shows that GAO is willing to sustain a pre-award challenge where a solicitation is, in some respect, unreasonable or flawed.


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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] 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.


[3] Task order protests are "attributable to GAO’s bid protest jurisdiction over task or delivery orders placed under indefinite-delivery/indefinite-quantity contracts."


[4] Notably, the "effectiveness rate" surpassed 50% in what appears to be the first time in well over a decade.


[5] 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.


. . .


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