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The Government Accountability Office (“GAO”) has released its Annual Report to Congress summarizing bid protest activity for Fiscal Year 2022 (GAO-23-900462). The report mostly shows a continuation of recent trends: the overall number of GAO protests continues to drop, “effectiveness” remains high and stable (51 percent), and there are very few hearings (two for the year). Of note, preaward solicitation challenges were one of the most successful types of protest at GAO, for the first time ever since GAO began reporting the bases for successful protests in 2013. Below we break down what contractors can glean from this latest report.
Overall numbers down
The total number of protests filed at GAO continues to fall. The chart below shows the number of protest actions reported by GAO over the last several years.
Why is this happening? It is likely a combination of factors. One is that some protesters increasingly view the Court of Federal Claims as a preferred first option for protests, in part because the Court will allow protesters access to the entire procurement record by default (in contrast to GAO, which permits agencies to withhold records deemed irrelevant). A second factor is that agencies may be using means such as task order procurements and other transaction agreements (“OTAs”) to decrease the number of protestable procurement actions. Third, enhanced debriefings may be having the intended effect of reducing the number of protests by giving unsuccessful offerors a better understanding of why they were not selected for award.
Effectiveness rate is stable and again tops 50 percent
While the share of protests sustained by GAO in a merits decision remains modest, the overall effectiveness rate remains stable and quite high. The chart below shows these statistics in recent years, with “effectiveness” indicating an outcome where a protest obtained some form of desired relief—most often through voluntary corrective action.
As contractors know well, many GAO protests are resolved through corrective action within the first 30 days, before the agency issues its agency report. GAO also frequently engages in various forms of Alternative Dispute Resolution, including outcome prediction wherein the GAO attorney will advise the parties of the likely outcome. Many agencies chose to take corrective action in response to outcome prediction indicating the protest is likely to be sustained. So while there are many avenues to the requested relief, the bottom line is that GAO protests remain quite effective.
Preaward protests find success
This is the tenth year that GAO has reported to Congress a list of the “most prevalent reasons for sustaining protests.” (The practice began with the FY 2013 report per 31 U.S.C. § 3554(e)(2).) The list for FY 2022: 1) unreasonable technical evaluation; (2) flawed selection decision; and (3) flawed solicitation. The last of these is particularly notable. Preaward protest grounds have never made an appearance on the list before. Even with GAO typically reporting four or five top bases for sustaining protests, the list has always included only topics or issues relevant in the post-award context. In FY 2022, protesters found increasing success pursuing preaward challenges to the terms of a solicitation. These challenges often include arguments that the solicitation was unduly restrictive of competition or contains ambiguous or contradictory terms. There have been a number of high-profile solicitation challenges recently, including those relating to the Polaris and CIO-SP4 information technology vehicle procurements.