This year’s annual GAO Bid Protest Report to Congress, which was submitted on November 27, shows that the number of protests remained approximately the same as last fiscal year – up to 2,607 versus 2,596 for FY17. But, for attorneys who regularly practice before the GAO, there are some trends that may make filing an initial protest at the Court of Federal Claims (COFC) a more attractive option.
The overall sustain rate at GAO for FY18 was 15%, down slightly from FY17 (17%). But, when reviewing the sustain rate, it is important to keep in mind that GAO issued only 622 bid protest merit decisions in FY18, and that the “effectiveness rate,” which the GAO defines as the protester obtaining some form of relief from the agency, was 44%.
While the effectiveness rate continues to be over 40%, the FY18 report shows a precipitous decline in the number of bid protest hearings at GAO over the past five years. In FY14, hearings were held in 42 fully developed cases, or 4.7%. In FY18, that dropped to only five cases, or .51%.
The reduction in the number of hearings has been coupled with agencies’ limitation of the record produced to only what is necessary to address the initial protest grounds. To the extent debriefings are themselves limited, which continues to be the case despite welcome developments relating to enhanced debriefings, those initial protest grounds are based on incomplete information. By limiting the record in this way, agencies reduce the likelihood of a protester identifying supplemental protest grounds after production of the record, potentially shielding from review errors that should be addressed during the protest process.
If the GAO continues to permit agencies to limit the record and restrict protester’s ability to fully address protest grounds at hearings, protesters will increasingly view bid protest litigation at the COFC a more attractive option. Judges at the COFC are less inclined to permit agencies to produce partial records, and hearings are the rule, not the exception. The fact that the Competition in Contracting imposes an automatic stay upon the filing of a bid protest at the GAO while an injunction is required in a COFC protest tips the scales slightly in favor of filing at the GAO. But in practice the government often voluntarily stays performance until a COFC protest is resolved. It is also true that, for the time being, a contractor can protest at the GAO and then file a protest at COFC if the GAO protest is not successful. These trends are causing contractors and their counsel to question more seriously whether it is worth going to the GAO in the first instance if the review afforded will be less than complete.
