In latest edition of The Wright Toolbox:
- 2021 GAO Bid Protest Annual Report – read now
2021 GAO Bid Protest Annual Report
On November 16, 2021, the Government Accountability Office (“GAO”) issued its annual Bid Protest Report to Congress for Fiscal Year 2021. During 2021, the GAO received 1,897 cases (down from 2020 – 2,149 cases). The breakdown of the cases was as follows: 1,816 protests, 43 cost claims, and 38 requests for reconsideration. The GAO closed 2,017 cases during the fiscal year. Of the protests resolved on the merits during 2021 (581), only 15% were sustained. The most prevalent reasons for sustaining protests during 2021 were: (1) unreasonable technical evaluation; (2) flawed discussions; (3) unreasonable cost or price evaluation; and (4) unequal treatment. The GAO noted that a significant number of protests filed with the office do not reach a decision on the merits because some agencies voluntarily take corrective action in response to a protest rather than defend the protest on the merits. Agencies are not required to report the reasons for deciding to take voluntary corrective action.
The GAO also reported that its “Effectiveness Rate” for 2021 was 48%, decreasing from the 51% in 2020. The Effectiveness Rate is based on a protester obtaining some form of relief from the agency, as reported to the GAO, either as a result of voluntary agency corrective action or the GAO sustaining the protest. Of interest, the Report notes that alternative dispute resolution (“ADR”) was used in 76 cases (down from the number of cases in 2020 – 124) and that the ADR process was 84% successful in resolving the cases. If you were looking forward to having your day in “court” regarding your protest with the GAO, don’t count on it. In 2021, the GAO conducted merit hearings in just 13 cases.
While the direct sustain rate at the GAO remains low at 15%, perhaps the more accurate measure of results is the Effectiveness Rate, which reflects the percentage of time that a protester obtains some form of relief. Thus, protests result in some form of relief almost 48% of the time. If you have any issues or questions regarding protests, please contact our Government Contracts Practice Group.