On Tuesday, GAO released its Bid Protest Annual Report to Congress for Fiscal Year 2022, which provides bid protest statistics and other interesting information regarding GAO’s protest system.

  • The number of protest filings dropped by 12% from FY21.  After a 12% drop in FY21, protest filings went down another 12% in FY22, with the lowest number of cases filed since FY08.  
  • The sustain rate dipped from 15% to 13%.  The sustain rate considers only the subset of cases that go all the way to a decision on the merits, and measures the percentage of those decisions that sustained the protest.  In FY22, GAO issued 455 merit decisions, and 59 of those were sustained, resulting in a sustain rate of 13% — solidly within GAO’s historical range of sustain rates.  The three most prevalent reasons for sustaining protests in FY22 were (1) unreasonable technical evaluation; (2) flawed selection decision; and (3) flawed solicitation. 
  • The effectiveness rate was a high 51%.  A significant number of protests filed at GAO do not result in a decision on the merits because agencies voluntarily decide to take corrective action before a decision on the merits is reached.  As a result, the more indicative statistic for favorable outcomes in a bid protest is the “effectiveness rate,” which measures the percentage of all protests filed in which the protester obtains “some form of relief from the agency . . . either as a result of voluntary agency corrective action or [GAO] sustaining the protest.”

    The 51% effectiveness rate for FY22 is the highest ever recorded by GAO, matching the all-time high of 51% in FY20 and greater than the FY21 effectiveness rate of 48%.  That means that in slightly more than half of all protests in FY22, the protester obtained some form of relief, confirming that protests can be worthwhile for disappointed offerors who have legitimate concerns about a procurement.
  • The number of hearings dropped to .27%.  Hearings are increasingly rare especially as compared to a decade ago, when 8-10% of fully-developed cases resulted in a hearing.  GAO conducted hearings in only 2 cases in FY22.

GAO’s annual bid protest report continues to provide useful information regarding GAO’s protest system.

Tags: bid protests, EPDS, GAO, GAO Annual Report, protests
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Photo of Jay Carey Jay Carey

A Chambers-rated government contracts practitioner, Jay Carey focuses his practice on bid protests, and regularly represents government contractors before the U.S. Government Accountability Office and the Court of Federal Claims. He has prosecuted and defended more than 80 protests, including some of…

A Chambers-rated government contracts practitioner, Jay Carey focuses his practice on bid protests, and regularly represents government contractors before the U.S. Government Accountability Office and the Court of Federal Claims. He has prosecuted and defended more than 80 protests, including some of the most high-profile protests in recent years, for clients in the aerospace and defense, biotechnology, healthcare, information technology, and telecommunications sectors. Mr. Carey also counsels clients on compliance matters and all aspects of federal, state, and local government procurement and grant law. He counsels clients extensively on organizational conflicts of interest (OCIs) and on strategies for protecting and preserving intellectual property rights (in patents, data, and software).

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Photo of Kayleigh Scalzo Kayleigh Scalzo

Kayleigh Scalzo represents government contractors in high-stakes litigation matters with the government and other private parties. She has litigated bid protests in a wide variety of forums, including the Government Accountability Office, U.S. Court of Federal Claims, U.S. Court of Appeals for the…

Kayleigh Scalzo represents government contractors in high-stakes litigation matters with the government and other private parties. She has litigated bid protests in a wide variety of forums, including the Government Accountability Office, U.S. Court of Federal Claims, U.S. Court of Appeals for the Federal Circuit, FAA Office of Dispute Resolution for Acquisition, Port Authority of New York and New Jersey, federal and state agencies, and state courts. She is also a co-head of the firm’s Claims, Disputes, and Other Litigation Affinity Group within the Government Contracts practice.

Kayleigh has particular experience navigating state and local procurement matters at both ends of the contract lifecycle, including bid protests and termination matters. In recent years, she has advised and represented clients in connection with procurements in Alaska, Arizona, California, the District of Columbia, Illinois, Indiana, Kansas, New Jersey, New York, Pennsylvania, Tennessee, Texas, and Virginia.

Kayleigh is a frequent speaker on bid protest issues, including the unique challenges of protests in state and local jurisdictions.

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Photo of Chanda Brown Chanda Brown

Chanda Brown advises clients on complex national security, defense, regulatory compliance and government contract matters, including bid-protests, size protests, internal investigations and the allocation of government rights in patents. For exporters, she provides guidance to clients regarding the export and import of dual…

Chanda Brown advises clients on complex national security, defense, regulatory compliance and government contract matters, including bid-protests, size protests, internal investigations and the allocation of government rights in patents. For exporters, she provides guidance to clients regarding the export and import of dual use and military products under the Export Administration Regulations and the International Traffic in Arms Regulations. Her work has involved responding to federal agency enforcement actions, assisting with export licensing and registrations, drafting export control plans, conducting product self-classifications and voluntary self-disclosures.

In corporate transactions and public company representations, she performs due diligence in connection with large and small government contractors. In transactions involving acquisitions by non-U.S. companies, she has helped clients navigate complex transactions before the Committee on Foreign Investment in the United States (CFIUS).

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