On November 18, the Government Accountability Office (GAO) released its annual bid protest report for FY 2014.  According to the report, 2,561 cases were filed at GAO in FY 2014, up 5% from last year.  The total of 2,561 includes 2,445 protests, 50 cost claims, and 66 requests for reconsideration.  GAO ruled on 556 cases on the merits and reported an “effectiveness rate” of 43%, meaning that 43% of protests this year garnered some form of relief, e.g., voluntary corrective action or a sustained protest.  Although the effectiveness rate has remained stable over the last few years, the “sustain rate” — the percentage of protests sustained in a merits decision — has fallen from 19% in FY 2010 to 13% in FY 2014.

Beginning in FY 2013, GAO has reported on the most prevalent grounds for sustaining protests.  The four most prevalent reasons for sustaining protests in FY 2014 were (1) failure to follow evaluation criteria, (2) flawed selection decision, (3) unreasonable technical evaluation, and (4) unequal treatment.  These reported bases for sustained protests are in line with traditionally successful protest grounds.

The ever increasing number of protests is one reason why the GAO has been evaluating options for instituting a protest filing fee and a new electronic docketing system.  As we reported previously, the Consolidated Appropriations Act of 2014 directed GAO to create an electronic filing system that would replace the current, primarily email-based process for filing and accessing protest-related communications.  See 31 U.S.C. § 3555(c).  The Act also authorized GAO to implement a protest filing fee.  The GAO has not yet acted to implement a new filing system or a filing fee.  As of today, GAO protests are generally filed via e-mail and do not require any filing fee.

As we explained here in reporting on GAO’s FY 2012 report, there are a couple of caveats to keep in mind about the GAO protest data.  First, the total number of protests reported does not reflect the total number of protested procurements, because GAO separately counts protests and supplemental protests under each docket (i.e., “B”) number.  As a result, multiple challenges to the same procurement are counted as separate protests.  In addition, a written decision in a case with multiple protesters is counted as more than one decision.  Second, and more importantly, the purported effectiveness rate that GAO calculates does not capture whether the relief ultimately changed an agency’s award decision, nor does the GAO report indicate the number of voluntary corrective actions versus sustained protests.  These shortcomings limit the report’s usefulness in assessing the true effectiveness of the GAO as a protest forum — that is, the likelihood that a GAO protest will result in a change in award.

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Photo of Jennifer Plitsch Jennifer Plitsch

Jennifer Plitsch leads the firm’s Government Contracts Practice Group, where she works with clients on a broad range of issues arising from both defense and civilian contracts including contract proposal, performance, and compliance questions as well as litigation, transactional, and legislative issues.

She…

Jennifer Plitsch leads the firm’s Government Contracts Practice Group, where she works with clients on a broad range of issues arising from both defense and civilian contracts including contract proposal, performance, and compliance questions as well as litigation, transactional, and legislative issues.

She has particular expertise in advising clients on intellectual property and data rights issues under the Federal Acquisition Regulations (FAR) and obligations imposed by the Bayh-Dole Act, including march-in and substantial domestic manufacturing. Jen also has significant experience in negotiation and compliance under non-traditional government agreements including Other Transaction Authority agreements (OTAs), Cooperative Research and Development Agreements (CRADAs), Cooperative Agreements, Grants, and Small Business Innovation Research agreements.

For over 20 years, Jen’s practice has focused on advising clients in the pharmaceutical, biologics and medical device industry on all aspects of both commercial and non-commercial agreements with various government agencies including:

  • the Department of Veterans Affairs (VA);
  • the Department of Health and Human Services (HHS), including the Biomedical Advanced Research and Development Authority (BARDA), the National Institutes of Health (NIH), and the Centers for Disease Control (CDC);
  • the Department of Defense (DoD), including the Defense Threat Reduction Agency (DTRA), the Defense Advanced Research Projects Agency (DARPA), and the Joint Program Executive Office for Chemical Biological Defense (JPEO-CBRN); and
    the U.S. Agency for International Development (USAID).

She regularly advises on the development, production, and supply to the government of vaccines and other medical countermeasures addressing threats such as COVID-19, Ebola, Zika, MERS-CoV, Smallpox, seasonal and pandemic influenza, tropical diseases, botulinum toxin, nerve agents, and radiation events. In addition, for commercial drugs, biologics, and medical devices, Jen advises on Federal Supply Schedule contracts, including the complex pricing requirements imposed on products under the Veterans Health Care Act, as well as on the obligations imposed by participation in the 340B Drug Pricing program.

Jen also has significant experience in domestic sourcing compliance under the Buy American Act (BAA) and the Trade Agreements Act (TAA), including regulatory analysis and comments, certifications, investigations, and disclosures (including under the Acetris decision and Biden Administration Executive Orders). She also advises on prevailing wage requirements, including those imposed through the Davis-Bacon Act and the Service Contract Labor Standards.

Photo of Nooree Lee Nooree Lee

Nooree is a Special Counsel in Covington’s Government Contracts practice.  He represents government contractors in a wide variety of transactional, litigation, and compliance matters. His primary areas of practice include corporate transactions involving contractors, international contracting and domestic sourcing matters, and grants and…

Nooree is a Special Counsel in Covington’s Government Contracts practice.  He represents government contractors in a wide variety of transactional, litigation, and compliance matters. His primary areas of practice include corporate transactions involving contractors, international contracting and domestic sourcing matters, and grants and cooperative agreements.