The Government Accountability Office (“GAO”) released its annual bid protest report to the Congress for fiscal year on November 14, 2024 (B-158766). The GAO actually received 1803 protests in fiscal year (“FY”) 2024 but dismissed or immediately denied or dismissed a substantial number of them, while actually considering and issuing decisions on 387 protests, known as “merit decisions.” Although this was an 11% decrease from 2023, the 2023 numbers were affected by more than 120 multiple protests in three protests. The number of protests was similar to the average of the prior three years (FY 2021-2024).
The GAO sustain rate increased slightly from 14 percent in FY 2023 to 16 percent in FY 2024. These figures were adjusted to remove 119 duplicate (multiple) protests and B-numbers in two protests--Systems Plus, Inc. et al, B-419956, June 29, 2023 and Phoenix Data Security, Inc. et al, B-419956.200 et al, July 10, 2023. GAO’s two year average sustain rate in FY 2023-2024 was 15 percent. This rate is comparable to prior years.
The other key GAO bid protest statistics for fiscal years 2019-24 were as follows:
GAO Bid Protest Statistics for Fiscal Years 2020-2024
| FY2019 | FY 2020 | FY 2021 | FY 2022 | FY 2023 adjusted | FY 2024 |
Merit decisions | 587 | 545 | 581 | 455 | 489 | 387 |
Sustained | 77 | 84 | 85 | 59 | 69 | 61 |
Sustain rate | 13% | 15% | 15% | 13% | 14% | 16% |
Effectiveness rate | 44% | 51% | 48% | 51% | 57% | 52% |
Alternative Dispute Resolution (ADR) cases | 40 | 124 | 76 | 74 | 69 | 76 |
ADR success rate | 90% | 82% | 84% | 92% | 90% | 92% |
Hearings | 2% (21 cases) | 1% (9 cases) | 1% (13cases) | 0.27% (2 cases) | 2% (22 cases) | .2% (1 case) |
The “effectiveness rate” declined somewhat, from about 57 percent in 2023 to 52 percent in 2024. These are protests where the protester obtained some form of relief from the agency, either as a result of voluntary agency corrective action or the protest being sustained.
The percentage of cases where the GAO conducted a hearing remained small—generally only 1 or 2 percent of the cases.
GAO also reported that there was one instance where a federal agency did not fully implement a recommendation made by the GAO. The State department asserted that there was a conflict between the Omnibus Diplomatic Security and Antiterrorism Act of 1986 and regulations published by the Department regarding the SAM registration Act. The GAO recommended that Congress resolve this alleged conflict. Also, during 2024, the GAO issued final decisions within 100 days after all protests that were submitted, as required by the Competition in Contracting Act, 31 USC § 3554(e)(2).
Finally, the GAO reported on the most prevalent reasons for sustaining protests that were actually resolved on the merits in FY 2024. These were:
1. Unreasonable technical evaluation
2. Flawed selection decision
3. Unreasonable cost or price evaluation
The GAO also noted that a significant number of protests it received did not reach a decision on the merits because agencies voluntarily took corrective action rather than defend the protest on the merits. Agencies need not and do not report any of the many reasons they decide to take voluntary corrective actions.
For other helpful suggestions on government contracting, visit:
Richard D. Lieberman’s FAR Consulting & Training at https://www.richarddlieberman.com/, and Mistakes in Government Contracting at https://richarddlieberman.wixsite.com/mistakes.
Comments