Alert
10.27.23
On October 26, 2023, the Government Accountability Office (GAO) published its Bid Protest Annual Report to Congress for Fiscal Year 2023. The GAO’s report, which is mandated by the Competition in Contracting Act, lists its key statistics for FY 2023 bid protest activity. The report also includes a chart providing similar bid protest statistics for fiscal years 2019 – 2023. This five-year snapshot provides some valuable insight into current bid protest trends and developments at the GAO.
Most notably, the GAO’s report reveals that its sustain and effectiveness rates increased substantially from the four prior years. The GAO’s sustain rate more than doubled from a four-year average of 14 percent to 31 percent. The GAO’s effectiveness rate, which includes protests that resulted in either voluntary agency corrective action or a GAO decision sustaining the protest, increased from a four-year average of 47.5 percent to 57 percent. This effectiveness rate is the highest rate since the GAO began tracking this metric in 2001.
The GAO explained that “the bid protest activity for fiscal year 2023 includes our Office’s resolution of an unusually high number of protests challenging a single procurement. This procurement involved the Department of Health and Human Services’ award of Chief Information Officer-Solutions and Partners 4 (referred to as “CIO-SP4”) government-wide acquisition contracts.” See Systems Plus, Inc. et al., B-419956.184 et al., June 29, 2023, 2023 CPD ¶ 163 (sustaining 93 protests and supplemental protests); Phoenix Data Security, Inc. et al., B‑419956.200 et al., July 10, 2023, 2023 CPD ¶ 172 (sustaining 26 protests and supplemental protests). Indeed, if the CIO-SP4 protest results are removed from the GAO’s statistics, the 2023 sustain rate would be 14 percent, which is consistent with the sustain rates for the prior four years.
The GAO also reported that the number of cases settled through alternative dispute resolution (ADR) decreased slightly to 69 in 2021 from 74 in 2022. The ADR success rate also decreased slightly, to 90 percent in 2022 from 92 percent in 2022. The GAO increased the number of hearings it conducts to 22 from only two hearings conducted in 2022.
Finally, the report shows that the most prevalent reasons for the GAO to sustain a protest in 2023 were (1) unreasonable technical evaluation, (2) flawed selection decision, and (3) unreasonable cost or price evaluation. Notably, the first two protest grounds on this 2023 list also were the first two most highly successful protest grounds in 2022.