The U.S. Court of Federal Claims issues another decision highlighting a growing divergence in case law between the Court and the Government Accountability Office.
On November 1, 2022, the Government Accountability Office (GAO) published its Bid Protest Annual Report to Congress for Fiscal Year 2022. The GAO’s report, which is mandated by the Competition in Contracting Act, lists its key statistics for fiscal year 2022 bid protest activity. The report also includes a chart providing similar bid protest statistics for fiscal years 2018 – 2022. 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 the effectiveness rate, which includes protests that resulted in either voluntary agency corrective action or a GAO decision sustaining the protest, increased to 51 percent from 48 percent the year before, which ties 2020 for the highest rate since the GAO began tracking this metric in 2001. The sustain rate of 13 percent for 2022 dropped from 15 percent in 2021 and 2020. The number of cases settled through alternative dispute resolution (ADR) decreased slightly to 74 in 2021 from 176 in 2021. The ADR success rate, however, increased to 92 percent in 2022 from 82 percent in 2021.
The total number of protests filed at the GAO in 2022 (1,655) was down 12 percent from 2021 (1,897) and continued a downward trend from the high in 2018 (2,642). The report also illustrates that the GAO only used hearings in two developed protests, which is a substantial reduction from the 13 hearings conducted in 2021.
Finally, the report shows that the most prevalent reasons for the GAO to sustain a protest in 2022 were: (1) unreasonable technical evaluation; (2) flawed selection decision; and (3) flawed solicitation. Notably, this list does not include the second through fourth most highly successful protest grounds from 2021: flawed discussions, unreasonable cost or price evaluation and unequal treatment.