GAO Releases Bid Protest Statistics for Fiscal Year 2017

This past Thursday, I attended an all-day Federal Government Contracts seminar at the Seattle, WA office of AGC titled,“How to Navigate the New Administration.” Among the speakers were my friends and former colleagues Jim Nagle and Adam Lasky of Oles Morrison Rinker and Baker. Adam spoke about bid protests, and Jim offered his insights regarding the top ten things you should know about federal contracting. Many thanks for an excellent and informative seminar.

Among the issues we discussed during the bid protest presentation were the GAO’s bid protest statistics for 2017, which were just released last week.

GAO reports that the number of cases filed, 2,672, decreased 7% from last year, the first time we have seen a decrease in the last five years. The number of sustained protests went down, from 139 in FY 2016 to 99 in FY 2017. Also declining was the sustain rate, from 23% in FY 2016 to 17% in 2017.

The effectiveness rate, which measures the percent of cases in which a protester obtains some form of relief from the agency, as reported to GAO, either as a result of voluntary corrective action or GAO sustaining the protest, continued its slight upward trend, from 43% in FY 2013 to 47% in FY 2017.

GAO also reports that, of the 17 percent of protests that were sustained on the merits, the most prevalent reasons were: (1) unreasonable technical evaluation; (2) unreasonable past performance evaluation; (3) unreasonable cost or price evaluation; (4) inadequate documentation of the record; and (5) flawed selection decision. These reasons are similar to those identified in recent prior years, although it is perhaps worthy of note that “inadequate documentation of the record” was not on the list for FY 2016, and that “unreasonable past performance evaluation” has been the number two “most prevalent reason” protests have been sustained for the last three years.

From this information we can conclude that competition for Government work remains robust, and that competitors are watching one another and willing to protest if they perceive an impropriety in the procurement process.

Although the 47% effectiveness rate appears promising, I look forward to the capture of reliable data indicating the number of “corrective actions” across all agencies that result in re-award to the initial awardee (which I would not consider to be “effective” for the protester). And for those protesters that proceed to a decision on the merits, the chances of success are less than 1 in 5 – which reinforces the importance of thoughtfully examining the agency report and considering the most prevalent reasons GAO sustains protests when formulating your protest grounds, in order to maximize the likelihood of success.

We welcome your thoughts and comments.