Alert 11.01.22
Government Accountability Office Publishes Fiscal Year 2022 Bid Protest Statistics
The effectiveness rate increased to 51 percent.
Alert
Alert
11.16.22
The Armed Services Board of Contract Appeals (ASBCA or Board) recently issued its fiscal year (FY) 2022 annual report, covering the period from October 1, 2021, through September 30, 2022. During FY 2022, 400 new appeals were docketed at the ASBCA, the same number of appeals that were docketed during FY 2021. A significant percentage of the appeals—114 of the 400 new cases (or roughly 25%)—were filed against the U.S. Air Force. During four of the previous five fiscal years, the U.S. Army Corps of Engineers was the agency against which most new ASBCA appeals had been filed.
As of October 2022, the Board’s 22 judges had a total docket of 957 cases (at the beginning of FY 2022, the Board had 954 pending cases). The Board resolved 142 appeals on the merits during FY 2022, reporting a sustain rate, “in whole or in part,” of 71 percent. This reported sustain rate marked a sharp increase from FY 2021 (52.7 percent) and FY 2020 (52.8 percent) and represents the highest sustain rate since FY 2007 (71.6 percent). That said, we caution contractors not to rely on this percentage alone when deciding whether to appeal claims to the Board or the Court of Federal Claims. The statistic does not differentiate between successful contractor claims and successful government claims. It does not reveal what percentage of contractor claims were, for example, sustained in whole at 75 percent or greater or at 50 percent or greater. In short, the statistic does not provide any data about the amount contractors recovered versus the amount they sought—which is an important consideration in assessing litigation at the ASBCA.
The Board reported that its 22 judges held 23 hearings, for a total of 89 days, during FY 2022. This statistic suggests that the Board has capacity to conduct more hearings in FY 2023 and beyond.
The Board reported that it dismissed 255 cases during FY 2022. It cited bilateral settlement as the reason for dismissal in the “majority of cases” (i.e., greater than 50 percent). This qualification conceals the actual percentage of settlement dismissals (versus dismissals following a procedural motion), which could range between 51 percent and 99 percent. We suggest that contractors assume the percentage of settlement dismissals is at the lower end of “majority” when considering litigation risk at the ASBCA. We say this because our anecdotal experience is that agencies are moving to dismiss on procedural grounds unrelated to the merits with considerable frequency. As the Board reports, on the 957 cases before it, agencies had filed 209 motions to dismiss on procedural grounds unrelated to the merits. The apparent proliferation of such procedural motions seems wholly inconsistent with one of the Board’s key missions, expressed in its rules, to provide, “to the fullest extent practicable, … informal, expeditious, and inexpensive resolution of disputes.”
Putting those questions aside, there is no dispute that the Board’s alternate dispute resolution (ADR) program is working. The Board performed 125 ADR proceedings during FY 2022. Six of the 125 cases were settled prior to the commencement of ADR and nine were withdrawn. Of the 110 remaining cases, 105 were successfully resolved, three were not resolved, and two remained pending at the conclusion of FY 2022 (97% resolution rate). These statistics indicate that ADR is the best option to resolve cases at the Board successfully and swiftly.
As a final note, the just-released Board report would benefit from the compilation and release of additional information in future reports. It would be helpful to know, for example, the sustain rate in government claims versus the sustain rate in contractor claims, or the percentage of money recovered versus the amount of the claim in cases where the Board decides quantum. Such additional statistical information would be useful to the contractor community at-large, and we hope the Board considers the inclusion of such information in future reports.
If you have any questions, please reach out to Pillsbury’s Claims and Terminations team. Also, please keep your eyes open for our client alert that addresses the annual report that we expect the Civilian Board to release soon.