On November 13, U.S. Government Accountability Office (“GAO”) published its Annual Report to Congress (B-158766, November 13, 2017), which contains the statistics for bid protests filed at GAO in FY 2017.
Here are the statistics taken from the report (along with those for FYs 2016-2013):
Protests filed – Down in the short-term, but still trending upward over the past ten years. The number of protests filed at GAO decreased 7% from FY 2016, to 2,596. This year ends the previous upward trend in the number of protest filings. Over the past five years, however, protests are still up 7% from FY 2013, and up a whopping 57% from ten years ago in FY 2008, when there were only 1,652 protests filed. See FY 2008 Annual Report to Congress.
Protests Sustained – Down, but the effectiveness rate has increased slightly. While the Sustain Rate dropped to 17%, FY 2016 was a particularly successful year for protesters. Over the past five years, the average Sustain Rate is 16.4%, the ten year average increases slightly to 17.5%. Interestingly, the Effectiveness Rate, which captures sustains as well as voluntary agency corrective action, was slightly up, demonstrating a consistent upward trend. So, while protesters had a decreased likelihood of success on the merits in a GAO decision, agencies appear to be more inclined to grant corrective action. As this number creeps upward year after year, we are now close to half of all protesters being granted some form of relief. Potential bid protesters should take heart as we are fast approaching 50/50 odds of some form of relief. Notably, use of GAO’s Alternative Dispute Resolution (ADR) procedures increased slightly, with a five-year high Success Rate of 90%.
Most Prevalent Grounds for Sustaining Protests – Since FY 13, GAO has been required to include a “summary of the most prevalent grounds for sustaining protests.” This year the top five most successful grounds were:
1) Unreasonable technical evaluation;
2) Unreasonable past performance evaluation;
3) Unreasonable cost or price evaluation;
4) Inadequate documentation of the record; and
5) Flawed selection decision.
Note that GAO does not track the reasons that agencies took corrective action. While the top three reasons remain the same from FY 2016, inadequate documentation of the record is a new addition from last year.
When viewed across the past five years, FY 2017 was a pretty average year for protests. But potential protesters should consider that the Effectiveness Rate continues to rise, meaning that bid protests continue to be a viable, effective option for government contractors when there is a problem with the solicitation or award.