On Thursday, GAO released its Bid Protest Annual Report to Congress for Fiscal Year 2023, which provides bid protest statistics and other interesting information regarding GAO’s protest system.

  • The number of protest filings increased by 22% from FY22.  After decreases over each of the past four years, the number of cases filed surpassed 2,000 for the first time since FY20.  GAO explained that the increase was due in part to “an unusually high number of protests challenging a single procurement” — HHS’s CIO-SP4 GWAC.  Over 300 protests were filed challenging that one procurement.
  • The sustain rate increased from 13% to 31%.  For each of the past four years, the sustain rate has alternated between 13% and 15%.  This year, however, it shot up to 31%.  That significant increase was due to the 119 protests that GAO sustained related to the CIO-SP4 GWAC (decisions available here and here).  If those 119 sustains are backed out of the calculation, the sustain rate would be back at a more typical level.
  • The effectiveness rate was a high 57%.  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.”  This high effectiveness rate, too, is largely due to the 119 sustains related to the CIO-SP4 GWAC.
  • The number of hearings increased by 1,000%.  The number of hearings shot up from 2 in FY22 to 22 in FY23.  That represents only 2% of cases, but is a return to the pre-pandemic levels of FY19.

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

Tags: Bid Protest, EPDS, GAO, GAO Annual Report, Protest, protests
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Photo of Kayleigh Scalzo Kayleigh Scalzo

Ranked by Chambers USA among government contracts practitioners, Kayleigh Scalzo represents government contractors in bid protests and other 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…

Ranked by Chambers USA among government contracts practitioners, Kayleigh Scalzo represents government contractors in bid protests and other 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, federal and state agencies, and state courts.

Kayleigh a co-chair of the American Bar Association Public Contract Law Section’s Bid Protest Committee. She is also a frequent speaker on bid protest issues.

Kayleigh maintains an active pro bono practice focused on immigration issues and gender rights.

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Photo of Jay Carey Jay Carey

Recognized by Chambers as one of the nation’s top bid protest lawyers and government contracts practitioners, Jay Carey represents clients in complex, high-stakes government procurements often worth billions of dollars. He is a vice-chair of the firm’s Government Contracts practice group and a…

Recognized by Chambers as one of the nation’s top bid protest lawyers and government contracts practitioners, Jay Carey represents clients in complex, high-stakes government procurements often worth billions of dollars. He is a vice-chair of the firm’s Government Contracts practice group and a co-chair of the Aerospace, Defense, and National Security industry group.

Jay has won bid protests collectively worth more than $100 billion, for clients across a range of industries — including aerospace & defense, energy, healthcare, biotechnology, cybersecurity, IT, and telecommunications. He litigates protests before the U.S. Government Accountability Office (GAO); the Court of Federal Claims (COFC); and state tribunals across the country. A list of his recent wins can be found under the “Representative Matters” tab.

In addition, Jay advises clients on compliance matters, conducts internal investigations, and defends against investigations by federal and state agencies. He also counsels clients on matters related to the formation of government contracts, including organizational conflicts of interest and the protection of intellectual property rights when entering into procurement contracts, grants, cooperative agreements, and “Other Transaction Authority” agreements with the government.

Jay serves as co-chair of the American Bar Association Public Contract Law Section’s Bid Protest Committee.

Read more about Jay CareyEmail
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