Luke W. Meier and Albert B. Krachman
The Government Accountability Office (“GAO”) has released its Annual Report to Congress summarizing bid protest activity for Fiscal Year 2019 (B-158766). The report shows that the number of protests has fallen, the effectiveness rate has remained high and remarkably stable, and hearings have made a bit of a comeback.
The chart below summarizes the GAO protest statistics from FY 2014 to FY 2019.
Here are four key takeaways from the latest report.
#1: Overall, the Number of Protests Is Down
The overall number of protests fell in FY 2019. After years of GAO receiving 2500 or more protests, FY 2019 saw only 2198 cases filed—a fairly substantial drop-off of 16 percent from the 2607 cases filed in FY 2018. This could be an anomaly, or may reflect the fact that the Government is making a greater percentage of awards through task orders, which have seen their protest jurisdiction further restricted (see takeaway #2).
#2: Task Order Protests Are Up
Despite the overall drop-off, the number of task order protests increased in FY 2019 to a near-record high of 373 (see summary chart below). This is despite the fact that the threshold for GAO protests of task or delivery orders under Department of Defense (“DoD”) multiple award contracts increased from $10 million to $25 million in May 2018, making fewer task order procurement protestable.
The increase in task order protests despite reduced protest jurisdiction indicates that, generally speaking, significantly more procurements are being conducted as task order or delivery order awards. This may explain in part the overall decrease in the number of GAO protests. Now that the change in threshold has been implemented, there may be many procurements (DoD awards between $10-$25 million) that would have been protested in years past, but now cannot be. Because the revised threshold went into effect in May 2018, FY 2019 represented the first full year of restricted jurisdiction.
#3: The Success Rate Remains High (and Remarkably Consistent)
The report again confirms that protesters frequently find success at GAO—obtaining some form of relief in more than two out of five protests. The “effectiveness rate” statistics show again that, while the percentage of protests sustained is low, protesters are nevertheless finding success at GAO. It is only that their wins are coming through voluntary corrective action, usually obtained within the first 30 days of the protest.
While the sustain rate has fluctuated, the overall effectiveness rate has been remarkable consistent at GAO. All the way back to FY 2008, in fact, the effectiveness rate has been somewhere between 42 percent and 47 percent. The bottom line: protests at GAO remain a highly effective tool for disappointed offerors.
#4: Hearings Made a Comeback
Last year, we noted that the number of hearings at GAO had fallen consistently for years, to the point that hearings were almost extinct. In remarks earlier this year, GAO’s Managing Associate General Counsel for Procurement Law, Ralph White, made clear that GAO had no intent to reduce the number of hearings or policy to that end. He also hinted that, based on the first quarter, the number of hearings might bounce back in FY 2019. That proved true.
GAO held 21 hearings in FY 2019. Hearings are still rare, but are happening.