GAO Clarifies Rules Re: OCI Waiver ProtestsAron Beezley, a partner in Bradley’s Government Contracts Practice Group, recently published a Law360 Expert Analysis article on the Government Accountability Office’s (GAO) decision in ARES Technical Services Corporation, B-415082.2, et al. (May 8, 2018). As discussed in the article, the GAO’s decision in ARES Technical Services Corporation provides a useful guide to GAO protesters in that it makes clear where they should (and should not) focus their “OCI waiver” challenges. As the article also discusses, the GAO’s decision is useful to agencies and intervenors in GAO protests, as it reinforces the reality that, in the OCI waiver context, agencies have a fairly low bar to clear before the GAO. Further, the GAO’s decision in this case is noteworthy in that it indirectly highlights the comparative lack of guidance by the U.S. Court of Federal Claims on OCI waiver protests.

A complete copy of the article is available on the Law360 website. If you have any questions about any of the topics discussed in the article, or about any other related issues, please feel free to contact Aron Beezley.

Highly Anticipated Report on Bid Protests is Finally Here!RAND Corporation recently issued its much-anticipated report on the prevalence and impact of bid protests. The report, which was issued at the direction of Congress, contains a plethora of important—and interesting—findings, including:

  • Despite a “steady increase” in bid protests filed between fiscal years 2008 and 2016, “[t]he share of contracts protested remains very small—less than 0.3 percent.”
  • A “concern” shared by federal contractors “was the quality of post-award debriefings.” According to the report, “[t]he worst debriefings were characterized as skimpy, adversarial, or evasive and failed to provide reasonable responses to relevant questions.”
  • “[S]mall protest rates per contract imply that bid protests are exceedingly uncommon for DoD procurements.”
  • “Task-order protests have a slightly higher effectiveness rate than other types of protests.”
  • “The stability of the bid protest effectiveness rate over time—despite the increase in protest numbers—suggests that firms are not likely to protest without merit.”
  • “Cases in which legal counsel is required (i.e., a protective order was issued by GAO) have higher effectiveness and sustained rates.”

A complete copy of the report is available here. If you have any questions about any of the topics discussed in the report, please do not hesitate to contact Aron Beezley.

GAO Bid Protest Sustain Rate Remains High in FY 2017The Government Accountability Office (GAO) recently issued to Congress its annual bid protest report. Of particular note, the report states that, “[o]f the protests resolved on the merits during fiscal year 2017, [GAO] sustained 17 percent of those protests.” By comparison, in fiscal year 2016, GAO sustained 22 percent of the protests resolved on the merits, and in fiscal year 2015, GAO sustained 15 percent of the protests resolved on the merits—a percentage that is in line with GAO’s historical protest “sustain rate” of approximately 10-12 percent. Thus, while the percentage of fiscal year 2017 “sustained” protests—i.e., protests in which the GAO found in favor of the protester on the merits—is not quite as high as last year’s sustain rate, the fiscal year 2017 sustain rate is still very high by historical standards.

In addition, protesters received some relief in 47 percent of the protests (up from 46 percent in fiscal year 2016). 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.” In fiscal year 2017, protesters thus received some form of relief from the agency in nearly half of the protests filed with GAO.

The report states that the “most prevalent reasons” for sustaining protests during the 2017 fiscal year were (1) unreasonable technical evaluation; (2) unreasonable past performance evaluation; (3) unreasonable cost or price evaluation; (4) inadequate documentation of the record; and (5) flawed selection decision. By comparison, in fiscal year 2016 the “most prevalent reasons” for sustaining protests were (1) unreasonable technical evaluation; (2) unreasonable past performance evaluation; (3) unreasonable cost or price evaluation; and (4) flawed selection decision.

Here is a link to GAO’s fiscal year 2017 bid protest report: http://www.gao.gov/assets/690/688362.pdf. If you have any questions about GAO’s report or the bid protest process in general, please do not hesitate to contact Aron Beezley.