On April 2, 2018, GAO issued a final rule revising its existing regulations to implement a number of changes to its bid protest process.  The new rule becomes effective on May 1, 2018.

Several of these changes implement requirements in Section 1501 of the Consolidated Appropriations Act for FY2014 (“Act”), which directed GAO to institute an electronic filing system and authorized GAO to charge a filing fee to cover the cost of that electronic filing system.  But the revisions are not limited to those two issues.

Here are the highlights:

Continue Reading GAO Debuts New Protest Procedures Effective May 1, 2018

Last week, the RAND Corporation published a report entitled “Assessing Bid Protests of U.S. Department of Defense Procurements: Identifying Issues, Trends, And Drivers.”  In it, RAND analyzed the prevalence and impact of bid protests of U.S. Department of Defense (“DoD”) acquisitions, and concluded that DoD bid protests are both “exceedingly uncommon” and, on the whole, effective in prompting DoD to take remedial actions to address issues identified in the protests.  The report, which was commissioned by Congress in Section 885 of the 2017 National Defense Authorization Act (“NDAA”) Pub. L. No. 114-238, is expected to be a driver of changes to the protest process, and includes several recommendations counseling against significant changes that appear to be favorable to protesters.
Continue Reading RAND Report Concludes That Protests of Department of Defense Procurements Are Rare, Effective

On Monday, GAO issued its Bid Protest Annual Report to Congress for Fiscal Year 2017.  Most notably, the effectiveness rate hit 47%.  The effectiveness rate looks at all cases filed, and measures the percentage of cases in which a protester obtains some relief, whether through a sustain by GAO or voluntary corrective action by the agency.

That’s right:  Protesters obtained relief in almost half of all protests last year.  And this year’s 47% effectiveness rate is a new all-time high — continuing a steady upward march over the past several years.  When GAO began measuring the sustain rate in 2001, it was just 33%.  By 2008, it had risen to 42%.  It then held pretty steady through 2012, but has been rising since:

Continue Reading GAO’s Annual Report: Protests Are Down, But Their Effectiveness Is Up

Earlier this month the U.S. Government Accountability Office (“GAO”) released a report titled “Department of Energy: Use of Leading Practices Could Help Manage the Risk of Fraud and Other Improper Payments” (GAO-17-235) (the “Report”).  As the title suggests, GAO assessed the Department of Energy’s (“DOE”) internal controls to manage “the risk of fraud and improper payments.”  GAO found that DOE had not employed certain “leading practices” to combat fraud – like creating a “dedicated entity to lead fraud risk management activities” and using “specific control activities, such as data analytics” – and offered six recommendations for improvement.  Although DOE disagreed with certain findings in the Report, the agency represented that it either already has implemented or is implementing the majority of GAO’s recommendations.  Here is our assessment of the Report.

Continue Reading GAO Recommends Improvements to DOE’s Fraud Controls; DOE Fires Back

In mid-December, GAO issued its Bid Protest Annual Report to Congress for Fiscal Year 2016.  The report reveals, among other things, that GAO’s protest sustain rate for this past fiscal year (“FY”) was 22.56%, almost double that of FY 2015.  While this is perhaps the most notable data point, the report once again provides a wealth of interesting information for the contractor community.

The Competition in Contracting Act requires that GAO report to Congress certain data concerning GAO’s handling of bid protests, including the number of protest filings and a summary of the most relevant grounds for sustaining protests.[1]  Unpacking this data provides helpful insight to contractors considering whether or not to challenge a procurement award via a bid protest at GAO.  The report includes a chart comparing the statistics over the last five fiscal years; below we summarize some of the highlights for FY 2016:
Continue Reading Double Your Pleasure: GAO’s Annual Protest Report Shows that Sustain Rate Has Almost Doubled, But the Effectiveness Rate Remained Flat

The U.S. Government Accountability Office (GAO) recently denied a protest challenging as unduly restrictive an express prohibition on the use of consultants to develop a proposed technical approach. The GAO concluded that such a prohibition is similar to an agency’s decision when evaluating proposals to only consider the experience and past performance of an offeror. This conclusion, if relied upon in future solicitations, could have a significant impact on both large and small contractors that rely on third parties when drafting proposals.

The solicitation at issue contemplated the award of multiple indefinite-delivery, indefinite-quantity contracts for the provision of “total” information technology service solutions to the U.S. Department of Veterans Affairs (VA). The solicitation instructed offerors to describe a proposed technical approach for “sample tasks” identified in the solicitation as a means to “test” offerors’ “expertise and innovative capabilities” to respond to circumstances that could arise during contract performance. Offerors were prohibited from using consultants to develop their proposed technical approach for sample tasks. Although an offeror could rely on consultants when drafting other components of its proposal, the offeror’s proposed technical approach for sample tasks had to be the “work of the Offeror” and any subcontractor with which the offeror had a formal teaming arrangement.

Continue Reading GAO Upholds Restriction on Using Consultants to Develop a Proposed Technical Approach

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.
Continue Reading GAO Bid Protest Filings Increase in FY 2014 But Sustain Rate Declines