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 is co-chair of the firm’s Government Contracts practice group. Her practice includes a wide range of contracting issues for large and small businesses in both defense and civilian contracting. Her practice involves advising clients on contract proposal, performance, and compliance questions…

Jennifer Plitsch is co-chair of the firm’s Government Contracts practice group. Her practice includes a wide range of contracting issues for large and small businesses in both defense and civilian contracting. Her practice involves advising clients on contract proposal, performance, and compliance questions as well as transactional and legislative issues. Her practice also includes bid protest and contract claims and appeals litigation before GAO, agency boards and the federal courts. Ms. Plitsch has particular expertise in advising clients in the pharmaceutical and biologics industry. She advises a range of pharmaceutical and biologics manufacturers on Federal Supply Schedule contracts, including the complex pricing requirements imposed on products under the Veterans Health Care Act, as well as research and development contracts and grants with various federal agencies. She also has significant experience advising on the requirements of various programs under which vaccine products and biodefense medical countermeasures are procured by the Government.

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.