The Government Accountability Office (GAO) recently released its 2024 Bid Protest Annual Report (Report), providing statistics on protests, cost claims, and requests for reconsideration at GAO this year. In this blog, PilieroMazza analyzes what the Report reveals about bid protests at GAO, including recent trends and how this information could affect a contractor’s decision to file a protest as well as its likelihood of success.
Analysis of the Report
Fiscal Year 2024 brought about an 11% decrease in the number of cases filed with GAO when compared with the number of cases filed in the previous fiscal year (1,803 filed in FY2024 versus 2,025 filed in FY2023). GAO resolved just 387 protests on the merits and sustained 61 protests, for a sustain rate of 16%. While this sustain rate is approximately half of last year’s sustain rate (33%), the percentage of sustained protests in FY2024 closely aligns with GAO’s historical average sustain rate of approximately 15% per year.
While the percentage of sustained protests significantly decreased, GAO’s effectiveness rate—the rate at which GAO sustains a protest or an agency takes voluntary corrective action—only slightly declined from the FY2023 high watermark of 57% to 52%, an effectiveness rate that is slightly higher than GAO’s historical average.
GAO also provided that the most prevalent reasons for sustaining a protest this year were:
- unreasonable technical evaluations;
- flawed selection decision; and
- unreasonable cost or price evaluation.
Unreasonable technical evaluations consistently top GAO’s list of the most prevalent grounds for sustaining a protest, with GAO citing its decision in Kauffman and Assocs., Inc., B-421917.2, B-421917.3,[1] Jan. 29, 2024, 2024 CPD ¶ 40, as an example. In that case, GAO found multiple aspects of the agency’s technical evaluation unreasonable, including where the contemporaneous record did not support the agency’s conclusion that the awardee’s quotation met solicitation requirements under the management plan factor. Specifically, the awardee’s quotation failed to address how that data would be protected, contrary to the solicitation’s requirements. Flawed selection decisions and unreasonable cost or price evaluations also landed on the list of the most prevalent reasons GAO sustained a protest, just as they did in FY2023. Based on GAO’s list of most prevalent reasons for sustaining a protest, there were fewer sustained protest grounds in 2024 than GAO has historically found asserting (1) flawed discussions, (2) unequal treatment, and (3) flawed solicitations.
The Report also shows a notable decrease in the number of hearings that GAO conducted. While hearings are very rare to begin with, there was only 1 hearing in 2024 (representing .2% of all fully developed cases) whereas there were 22 hearings last year. The number of cases implementing Alternative Dispute Resolution (ADR) remained relatively the same at 76 (compared to 69 in 2023 and 74 in 2022). The ADR success rate remains high at 92%, a 2% increase from last year’s 90% success rate.
GAO also noted in its Report that one agency failed to implement its recommendations last year. Here, GAO sustained a protest challenging a Department of State (DOS) procurement, which involved a conflict between the requirements to qualify as a U.S. person under the Omnibus Diplomatic Security and Antiterrorism Act of 1986, as amended (Security Act), and DOS’s interpretation of the FAR requirements concerning registering in the System for Award Management (SAM). GAO recommended DOS reinstate the protester in the competition, amend the solicitation to clarify the SAM requirements with respect to de facto joint venture members, and then proceed with the procurement as appropriate. The DOS, however, declined to implement GAO’s recommendations. The protester thereafter took its case to the U.S. Court of Federal Claims (COFC), and while that decision is not public, the docket shows COFC granted DOS’s motion for judgement on the administrative record. The protester has since appealed to the U.S. Court of Appeals for the Federal Circuit.
Takeaways from the Report
This Report shows that GAO has generally returned to its pre-2023 protest numbers. While the decreases seem dramatic, it is important to remember GAO’s 2023 activity includes the resolution of an unusually high number of protests challenging a single procurement—the Department of Health and Human Services’ Chief Information Officer-Solutions and Partners 4 (referred to as “CIO-SP4”) procurement. The total number of merit decisions decreased slightly from pre-CIO-SP4 numbers (2020, 2021, and 2022).
Critically, even though the number of protests decreased, GAO’s effectiveness rate increased from its historical averages to 52%, indicating that more than half of the protests filed with GAO ended with a sustain or agency voluntary corrective action. So, protesting at GAO remains a powerful vehicle for challenging an agency’s improper procurement decisions, with protesters having good odds of obtaining relief.
PilieroMazza attorneys have substantial experience filing and defending protests. If you have questions or need assistance, please contact Katie Burrows, Eric Valle, or another member of the Firm’s Bid Protests or Government Contracts practice groups.
_______________
Looking for practical insights on gaining a competitive advantage through a deeper understanding of the government’s compliance requirements? Check out PilieroMazza’s podcasts “GovCon Live!” and “Clocking in with PilieroMazza.”
[1] PilieroMazza represented the protester in this case.
Related Attorneys
