• Joshua Duvall

GAO Publishes its Bid Protest Annual Report to Congress for FY 2019

On November 5, 2019, the U.S. Government Accountability Office ("GAO") submitted its Bid Protest Annual Report to Congress for Fiscal Year 2019.  The Report, which is mandated by the Competition in Contracting Act of 1984 ("CICA"), 31 U.S.C. § 3554(e)(2), requires GAO to provide Congress with: (1) "each instance in which a federal agency did not fully implement a recommendation made by our Office in connection with a bid protest decided the prior fiscal year," (2) "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[,]" and (3) "a summary of the most prevalent grounds for sustaining protests” during the preceding fiscal year. [1]


Notably, in addition to the aforementioned data, this year's Report also contains details related to the 35-day government shutdown, which occurred between December 2018 and January 2019.  In that regard, GAO noted that GAO was not subject to the lapse in appropriations and continued to process bid protests during the government shutdown. [2]


Turning back to the CICA-mandated information, the Report is highly informative as it offers insight into the bid protest process, including what bid protest grounds are typically successful at GAO. In that respect, contractors who are familiar with this information will likely be a better position to spot a potential basis for protest, which ultimately could lead to agency corrective action or GAO sustaining the protest. Below is a snapshot of the Report, including notable statistics and GAO's most prevalent grounds for sustaining bid protests.


Notable Statistics


  • Number of Cases (protests, cost claims, reconsiderations) – 2,198 (down, 2,607 in FY18)

  • Number of Protests – 2,080 (down, 2,474 in FY18)

  • Sustain Rate – 13% (down, 15% in FY18)

  • Effectiveness Rate – 44% (same as FY18) [3]

  • Task Order Protests – 373 (up, 356 in FY18)


Most Prevalent Grounds For Sustaining Protests


  • Unreasonable technical evaluation

  • Inadequate documentation of the record

  • Flawed selection decision

  • Unequal treatment

  • Unreasonable cost or price evaluation


Takeaway


This year's statistics are interesting in three respects: (1) there were 400+ fewer protests, (2) the effectiveness rate stayed the same as FY 18, and (3) the number of task order protests increased. Despite the overall drop in protests filed, protesters appear to have about a 50/50 chance of obtaining some form of relief (voluntary corrective action or GAO sustain) should they pursue a protest at GAO.  That's good news for protesters who think that the agency erred in some aspect of the procurement.  Where the protest is, at least in part, based on the procedural flaws identified above (e.g., unreasonable cost/price or technical evaluation, unequal treatment, or flawed selection decision), your chances of obtaining some form of relief are even stronger.


__________


[1] See Bid Protest Annual Report to Congress for Fiscal Year 2019, B-158766, GAO-20-220SP, Nov. 5, 2019.  In FY13, Congress passed legislation that 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.


[2] GAO also included a chart on the impact of the government shutdown. See id. at 4, Enclosure I.


[3] Effectiveness rate measures is based on a protester obtaining some form of relief, either as a result of voluntary agency corrective action or GAO sustaining the protest.


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#govconjudicata #bidprotest


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