Earlier this month, the Government Accountability Office (“GAO”) issued its annual Bid Protest Report to Congress for Fiscal Year 2019. Mandated by the Competition in Contracting Act, the GAO’s yearly Bid Protest Report presents unique insight into the underlying GAO bid protest metrics over the course of a fiscal year, along with data on five-year trends in the GAO’s bid protest adjudication. The following chart provides a snapshot of the GAO’s statistics from FY 2019 through FY 2015:
Below are our takeaways from the FY 2019 report:
- Case Filings Are Down Significantly From FY 2018. The GAO reports 2,198 cases were filed in FY 2019, of which 2,071 were bid protests. The remainder of cases filed constituted costs claims (60 filings) and requests for reconsideration (67 filings). As compared with the 2,607 cases filed with the GAO in FY 2018, the FY 2019 number represents a 16% reduction in the number of case filings. In fact, the FY 2019 number is the lowest since FY 2009. Unfortunately, the GAO’s Bid Protest Report doesn’t provide any reason for this marked decrease, but likely culprits include, inter alia, the $350 filing fee introduced in conjunction with the full rollout of the GAO’s Electronic Protest Docketing System and the Department of Defense’s (“DoD’s”) use of its enhanced debriefing procedures. The GAO’s filing fee may be acting as a deterrent to pursuing low-dollar-value protests, and the DoD’s enhanced debriefing process typically provides disappointed offerors with more detailed information about the evaluation of their proposals, which can influence a decision not to protest.
- The Number of Sustained Protests Dropped for the Second Year in a Row. Of the 2,200 cases closed in FY 2019, the GAO reached a decision on the merits in 587 cases. However, GAO sustained only 13% of the protests resolved on the merits, a slight decrease from a 15% sustain rate in FY 2018. The most common bases for sustaining protests in FY 2019 were, according to the GAO, (1) unreasonable technical evaluation; (2) inadequate documentation of the record; (3) flawed selection decision; (4) unequal treatment of offerors; and (5) unreasonable cost or price evaluation. The FY 2019 Bid Protest Report also indicated that agencies implemented all of the GAO’s recommendations in sustained protests.
- Protesters Obtain Some Form of Relief Nearly 50% of the Time. The GAO’s 44% “effectiveness rate” (i.e., the rate at which a protester obtains some form of relief at the GAO, either as a result of a sustained protest or voluntary agency corrective action) for FY 2019 remains in line with the 45% average effectiveness rate over the past five fiscal years. That is, in the 2,200 cases the GAO closed in FY 2019, it sustained 77 protests, and agencies took voluntary corrective action in 891 other cases. Although the number of sustained protests remains low, the significant number of protests in which an agency took voluntary corrective action indicates that an impressive number of protesters receive some form of relief at the GAO.
- The Number of Task and Delivery Order Protests Increased. In FY 2019, 373 task or delivery order protests were filed with the GAO, an increase from FY 2018 (356 protests) and the highest number of such protests since FY 2016. This categorical rise in protests is especially noteworthy in light of the May 2018 increase of the GAO jurisdictional threshold—from $10 million to $25 million—to hear protests of task or delivery orders under DoD multiple-award contracts.
In light of the GAO’s FY 2019 statistics, are bid protests at the GAO still “worth” the outlay of time and, most importantly, money for contractors? Based on the GAO’s effectiveness rate over the past five years alone, the resounding answer is yes. As noted previously, the rate of relief afforded to protests by way of either sustained protests or voluntary agency corrective action has remained remarkably consistent—around 45%—over the past five fiscal years, and the FY 2019 effectiveness rate of 44% continues this trend. Compared with the more time-consuming and expensive bid protest litigation at the United States Court of Federal Claims, and the often opaque agency-level protest process, the GAO’s bid protest fora offer disappointed offerors the most bang for their buck. Despite the low number of sustained protests, agencies are choosing to take voluntary corrective action at a high rate, often within the first few weeks of a protest filing. Although agency corrective action doesn’t always result in a protester receiving a contract award, an agency’s voluntary decision to revisit its award decision or reevaluate proposals does allow a disappointed offeror another chance to compete.
Contractors interested in pursuing a protest action either before or after contract award must keep in mind that the GAO’s bid protest deadlines are short and inflexible. Thus, it’s critical that a disappointed contractor contact the Government Contracts attorneys at McCarter & English as soon as possible to discuss filing a protest.