In latest edition of The Wright Toolbox:
- 2022 GAO Bid Protest Annual Report
2022 GAO Bid Protest Annual Report
On November 1, 2022, the Government Accountability Office (“GAO”) issued its annual Bid Protest Report to Congress for Fiscal Year 2022. During 2022, the GAO received 1,658 cases (down 12% from 1,897 in 2021, which follows a downward trend since 2018). The breakdown of the cases was as follows: 1,595 protests, 43 cost claims, and 20 requests for reconsideration. The GAO closed 1,655 cases during the fiscal year. Of the protests resolved on the merits during 2022 (455), only 13% were sustained. The most prevalent reasons for sustaining protests during 2022 were: (1) unreasonable technical evaluation; (2) flawed selection decisions, and (3) flawed solicitation. 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 2022 was 51%, increasing from the 48% in 2021. 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 74 cases (down from the number of cases in 2021 – 76) and that the ADR process was 92% 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 2022, the GAO conducted merit hearings in just 2 cases.
While the direct sustain rate at the GAO remains low at 13%, 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 51% of the time. If you have any issues or questions regarding protests, please contact our Government Contracts Practice Group.