Luke W. Meier and Ioana Cristei
The Government Accountability Office (“GAO”) has released its Annual Report to Congress detailing the bid protest statistics for Fiscal Year 2018 (B-158766). The report shows a continuation of recent trends: the sustain rate is low; overall success is nevertheless quite strong; and hearings have become nearly extinct.
The GAO issued a decision on the merits for 622 protests in FY 2018. That represents only a fraction of the 2,607 total protests received, but is the most decisions GAO has issued in at least 10 years. As is typically the case, less than 20 percent of those protests resulted in “sustain” decisions finding in favor of the protester—just 92 protests, or 15 percent of those decided in FY 2018. Despite that seemingly grim rate of success in merits decisions, protesters’ overall rate of success, what GAO terms the “effectiveness” rate, continues to hover around 45 percent. As before, protesters are obtaining desired relief in nearly half of all protests filed—but their “win” typically comes well before a final merits decision with the agency taking voluntary corrective action, usually within the first 30 days of the protest, before the agency report has been filed.
The charts below summarizes the statistics from FY 2008 to FY 2018.
One striking trend from the above numbers is the disappearance of protest hearings. Not long ago, GAO held hearings in 50–60 protests a year. (See, e.g., FY 2009–2012 above.) The number of hearings has steadily dropped since that time, and as of FY 2018 they are nearly obsolete. Last year saw GAO hold only five hearings—about one in every 200 protests.
According to GAO’s report, the most prevalent reasons for sustaining protests this year were: (1) an unreasonable technical evaluation; (2) an unreasonable cost or price evaluation; and (3) a flawed selection decision. These reasons are similar to those identified in prior years, though it is worth noting that “unreasonable past performance evaluation” and “inadequate documentation of the record” were both on the list for FY 2017 and “unreasonable past performance evaluation” had been the second “most prevalent reason” each of the last three years.
Last year saw an all-time high in the number of protests of task and delivery orders placed under indefinite-delivery/indefinite-quantity contracts—showing a significant year to year increase. This increase, shown in the chart below, comes despite the fact that the threshold for GAO protests of task or delivery orders under Department of Defense multiple award contracts has been increased to $25 million from $10 million.
* Note: in FY 2011 and 2012, the numbers are based on cases filed, while the rest of the numbers are based on cases closed, which can be different from cases filed.
The lesson for government contractors? Don’t expect a hearing, but GAO protests remain an effective tool for reopening procurement competitions.