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Column: 2022 GAO Bid Protest Annual Report: Key Takeaways for Government ContractorsBy Jacqueline K. Unger, partner, and Dozier L. Gardner, Jr., associate PilieroMazza PLLCThe Government Accountability Office (GAO) recently released its 2022 Bid Protest Annual Report, which reviews statistics compiled from the cases brought before the agency, including protests, cost claims, and requests for reconsideration. In this blog, PilieroMazza analyzes what the report reveals about bid protests at GAO, including recent trends and how the information could affect a contractor’s decision to file a protest and its likelihood of success. All years are fiscal years. Analysis of the Report In 2022, the number of cases filed with GAO was down 12% when compared with the cases filed in 2021. There were1,659 cases filed in 2022 versus 1,897 cases in 2021. Of these cases, 455 protests were resolved on the merits and 59 were sustained, for a sustain rate of 13%. This sustain rate is marginally lower than the previous two years where the sustain rates were 15% in both 2021 and 2020. On the other hand, in 2022, GAO’s effectiveness rate—the rate at which GAO sustains a protest or an agency takes voluntary corrective action—was 51%. The 51% effectiveness rate represents an increase from 2021’s 48% and is higher than the average effectiveness rate of 46.75% over the previous four years. Reasons for sustaining a protest GAO also provided that the most prevalent reasons for sustaining a protest in 2022 were:
Unreasonable technical evaluations remain the most prevalent reason for sustaining a protest, as they have for the past few years. Flawed selection criteria and flawed solicitations also have been prevalent grounds in recent years, with flawed selection criteria being prevalent in 2019 and flawed solicitations in 2020. There were fewer sustained protest grounds asserting flawed discussions and unequal treatment in 2022, compared to 2021 where they were the second and fourth most prevalent grounds, respectively. Number of Hearings and ADRs The GAO’s report also shows a notable decrease in the number of hearings that GAO conducted. While hearings are very rare to begin with, there were only two hearings in 2022 (representing 0.27% of all fully developed cases) whereas there were 13 hearings last year and a recent high of 21 hearings (2% of fully developed protests) in 2019. Similarly, the number of cases implementing Alternative Dispute Resolution (ADR) dropped to 74 cases from 76 cases in 2021. However, the ADR success rate has had a noticeable increase from 84% in 2021 to 92% in 2022. Protester goes to court The GAO also noted in its report that one agency failed to implement its recommendations in 2022. Here, GAO sustained a protest against the Dept. of the Navy, Naval Air System Command (Navy) and recommended it either reopen discussions or issue an amendment to its solicitation reflecting updated specifications. The Navy, however, declined to implement GAO’s recommendations. The protester thereafter took its case to the U.S. Court of Federal Claims, and after the court issued an oral opinion in the protester’s favor, the Navy agreed to take corrective action, which ultimately was consistent with GAO’s recommendations. Takeaways from the Report This report shows that 2022 was the fourth straight year that the number of protests filed at GAO decreased. It also was the second year in a row that protests decreased by 12%, marking the largest back-to-back decrease in protests over the past decade. At least part of this continual decrease may be due to the Dept. of Defense implementing enhanced debriefings in 2018, which PilieroMazza has previously reported. The DOD carries out enhanced debriefings to provide contractors a procedure to better understand where their proposals can be improved. They also allow more time for contractors to make fully informed decisions about filing a protest. The decrease in protests at GAO also may result from contractors opting to protest at the Court of Federal Claims instead, where they are likely to get a more fulsome document production than at GAO. Effectiveness rate of GAO protests Critically, even though the number of protests had decreased, GAO’s effectiveness rate increased to 51%, indicating that more than half of the protests filed with GAO ended with a sustain or agency voluntary corrective action. So, protesting at GAO remains a powerful vehicle for challenging an agency’s improper procurement decisions, with protesters having good odds of obtaining some sort of relief.
More information: If you have questions about protests at the GAO, please contact Jackie Unger, the author of this blog, or a member of PilieroMazza’s Bid Protests or Government Contracts practice groups (www.pilieromazza.com). Special thanks to Dozier Gardner for his assistance with this blog post. This blog was reprinted with permission.
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