In latest edition of The Wright Toolbox:
2023 GAO Bid Protest Annual Report
On October 26, 2023, the Government Accountability Office (“GAO”) issued its annual Bid Protest Report to Congress for Fiscal Year 2023. During 2023, the GAO received 2,025 cases (an increase of 22% from 2022, which reversed a downward trend since 2018). GAO explained that the increase was due in part to “an unusually high number of protests challenging a single procurement” — HHS’s CIO-SP4 GWAC. Over 300 protests were filed challenging that one procurement. The breakdown of the cases was as follows: 1,957 protests, 38 cost claims, and 30 requests for reconsideration. The GAO closed 2,041 cases during the fiscal year. Of the 2,041 cases closed, 368 were attributable to GAO’s bid protest jurisdiction over task orders.
Of the protests resolved on the merits during 2023, approximately 31% were sustained. This percentage of sustained protests more than doubled the 2022 percentage of 13%. However, it should be noted that the increase was due in part to the 119 protests that GAO sustained related to the CIO-SP4 GWAC procurement. The most prevalent reasons for sustaining protests during 2023 were: (1) unreasonable technical evaluation; (2) flawed selection decision; and (3) unreasonable cost or price evaluation. 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 2023 was 57%, increasing from the 51% in 2022. Once again the unusual CIO-SP4 GWAC procurement played a role in skewing the numbers. 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 69 cases and that the ADR process was 90% 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 2023, the GAO conducted merit hearings in just 22 cases.
While the direct sustain rate at the GAO rose to a high of 31%, 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 57% of the time. If you have any issues or questions regarding protests, please contact our Government Contracts Practice Group.