The Government Accountability Office (GAO) recently issued to Congress its annual bid protest report for Fiscal Year (FY) 2019. As discussed below, this year’s report is particularly noteworthy for multiple reasons, including that it shows that protesters continue to receive some form of relief in nearly half of the protests filed with GAO and reports on the effect of the most recent government shutdown.

First, what is GAO’s Bid Protest Annual Report to Congress?

The Competition in Contracting Act of 1984 (CICA), 31 U.S.C. § 3554(e)(2), requires the comptroller general to report to Congress each instance in which a federal agency did not fully implement a recommendation made by GAO in connection with a bid protest decided the prior fiscal year and each instance in which a final decision in a protest was not rendered within 100 days after the date the protest is submitted to GAO (GAO reports that there were no such occurrences during FY 2019). CICA also requires that GAO include in the annual report a “summary of the most prevalent grounds for sustaining protests” during the preceding year. Further, GAO includes in the report “data concerning its overall protest filings for the fiscal year.”

What are the highlights of the 2019 report?

Of particular note, the FY 2019 report shows that, for the second straight year, protesters received some relief in 44% of the protests. GAO reports this statistic as an “effectiveness rate”—i.e., the percentage of protests where the protester obtained “some form of relief from the agency . . . either as a result of voluntary agency corrective action or [GAO] sustaining the protest.” The following chart shows the “effectiveness rate” for the last five fiscal years and provides additional details on protest volume and success.

The report states that “the most prevalent reasons for sustaining protests” during FY 2019 were: (1) unreasonable technical evaluation; (2) inadequate documentation of the record; (3) flawed section decision; (4) unequal treatment; and (5) unreasonable cost or price evaluation.

By comparison, in FY 2018, the “most prevalent grounds” for sustaining protests were (1) unreasonable technical evaluation; (2) unreasonable cost or price evaluation; and (3) flawed selection decision.

Notably, this year’s report to Congress also included a report on the effect of the 35-day-long Government shutdown that began in December 2018 and ended in January 2019. Specifically, the report states, in relevant part:

Because the government shutdown lasted for 35 days, bid protest decision deadlines for eight protests from affected agencies were extended, as needed, for a maximum of 35 days. Despite the length of the shutdown, and because GAO remained open during this period, [GAO] continued to decide all protests within 100 calendar days for the period that the relevant portion of the government was funded.

Wait, I have more questions!

If you have any questions about GAO’s recent report or the bid protest process in general, please do not hesitate to contact Aron Beezley.