GAO’s BID PROTEST – 2020 YEAR IN REVIEW
Every year by law, GAO releases an annual report on bid protests. While 2020 was an outlier in so many respects, this was not one of them with GAO releasing its bid protest annual report In late December. The most notable item out of this report is that 51 percent of protests achieved a positive outcome of either outright sustainment or some sort of corrective action. GCPC’s Government Contract Group saw even better success with the Government taking corrective action in about three-quarters of our protests.
This report shows that the common perception that bid protests usually fail is false. True, the percentage of sustained protests hovers in the 15% range, but this number is artificially low due to the Government’s ability to take corrective action. In 2020, the Government took corrective action in about 35% of protests. Given the stakes of many procurements, especially to a small business, a 50% success rate is compelling.
Here at General Counsel, we pride ourselves on our ability to maximize this success rate while minimizing costs and, more importantly, not antagonizing the Government customer. Nearly all protests are based on some level of assumptions. Sometimes, these assumptions are wrong. A good protest attorney can tell from the review of the administrative record if there is no real basis for the protest. In those instances, we would advise a client to withdraw the protest; if, however, the record supports the protest, we would push on to a, hopefully, positive outcome.
When reviewing the GAO statistics summarized below, keep in mind the disadvantage a protestor faces from the outset. You have to file a protest based on the limited information the Government provides, while the Government is incentivized to keep certain key facts away from a potential protester. Given these ground rules, a 50% success rate is pretty remarkable.
GAO Annual Report
The Competition in Contracting Act requires GAO to publish an annual report stating:
(1) each instance that a federal agency didn’t fully implement GAO’s recommendation;
(2) each time a protest was not decided within 100 days of the protest being submitted;
(3) data related to overall protest filings for the year; and
(4) a summary of the most prevalent grounds for sustaining protests during 2020.
As is almost always the case, in 2020 there were no protests falling into the first two categories. For the protests that were filed, in 2020 GAO received 2,149 cases: 2,052 protests, 56 cost claims, and 41 requests for reconsideration. Of these, 2,137 cases were closed, including 2,024 protests, 66 cost claims, and 47 requests for reconsideration.
GAO noted that the most prevalent grounds for sustaining protests in 2020 were: (1) unreasonable technical evaluation (2) flawed solicitation; (3) unreasonable cost or price evaluation; and (4) unreasonable past performance evaluation. This seems to be the first time GAO has listed “flawed solicitation” as one of the most prevalent reasons for sustaining protests.
GAO also provided statistics about matters heard from 2016 through 2020. The snapshot is helpful to get an idea of bid protest trends over recent years. Notably, the 2020 effectiveness rate for cases filed in 2020 was 51%. This means that a protester obtained some form of relief from the agency in more than half of the cases filed. This includes GAO sustaining the protest and voluntary agency corrective action. The effectiveness rate was up from 44% in 2019. Additionally, GAO’s use of Alternative Dispute Resolution (“ADR”) rose significantly in 2020, with ADR used in 124 cases in 2020, up from 40 in 2019. However, the ADR success rate dropped from 90% in 2019 to 82% in 2020.
Unsurprising given the COVID pandemic, these statistics show that the number of cases filed in 2020 were down over 2%. Although there has generally been a decrease in protests the last few years as the Government implemented the enhanced debriefing procedures and GAO required a protest filing fee.
GAO sustained 15% of protests; an increase from 13% in 2019 and a reversal of the decline over the past few years. Lastly, GAO only conducted hearings in 1% of cases, equaling 9 cases, down from 21 cases in 2019.
If you have questions about GAO’s annual report or the bid process in general, contact Lewis Rhodes at 703-868-8653 today.