FY2018 GAO Protest Report Details Protest Trends
On Nov. 27, 2018, the Government Accountability Office (GAO) released its annual report to Congress that details the prior year's protest statistics. The sum of these numbers shows a number of continuing trends at GAO, including a steady number of protests filed from year to year and effectiveness rate.
As many readers know, GAO is one of three potential venues for contractors to file pre-award or post-award protests (the other two being the Court of Federal Claims and the agency issuing the Solicitation).1 While each has its own advantages, GAO is the most commonly used venue, most likely due to the automatic stay afforded contractors who file protests within specific time limits combined with the ability to have a third-party look at the issues raised by the contractor. Because of that, GAO's statistics are an important measure of the impact of protests on the federal government's procurement process.
Included with the report is the below chart:
This chart illustrates some important trends, including:
- The number of protests filed was flat and lower than FY2015 and FY2016.
- The sustain rate, which is the percentage of protests GAO finds have merit, was also flat and down compared with FY2016. GAO issued 622 decisions and sustained the protest in 92 of them.
- The effectiveness rate, which is the combined percentage of protests that are sustained with the number in which the agency takes corrective action that renders the protest moot, was also flat (44%).
- The number of hearings continues to drop. While 4.7% of protests included a live hearing in FY2014, that number has consistently fallen from year-to-year and is now 0.51% (just five cases).
According to the report, the most common protest grounds were: (1) unreasonable technical evaluation; (2) unreasonable cost or price evaluation; and (3) flawed selection decision. Other common protest grounds not mentioned in the report include unequal or misleading discussions and disparate treatment between offerors.
The whole of these statistics show a protest system that works: nearly half of filed protests result in some sort of relief for the protestor. In addition, a recent study commissioned by Congress in the 2017 National Defense Authorization Act (NDAA) found that protests do not significantly impact the government's ability to purchase products and services in a timely manner because most protests are resolved within a couple of months. Nevertheless, a panel required by Section 809 of the 2016 NDAA is examining whether changes should be made to the protest system. It will be interesting to see if the Section 809 Panel's recommendations, due in January, rely on the statistics published by GAO or the analysis commission by Congress and performed by RAND Corporation or go in a different direction.
1 A stay is possible at the Court of Federal Claims if a contractor meets a four element test including demonstration of a likelihood of success on the merits and irreparable harm (without a stay).