Each year, the General Accountability Office (“GAO”) releases an annual report, which compiles information about cases it saw in the previous year. GAO recently released the report for fiscal year 2022 with information about protests filed with GAO for the 2022 fiscal year.
During the 2022 fiscal year, GAO received a total of 1,658 cases, comprised of 1,098 protests, 43 cost claims, and 20 requests for reconsideration. 1,655 cases were closed during the fiscal year, and out of those 1,655, 344 were attributable to GAO’s bid protest jurisdiction over task orders. 1658 was a significant 12% drop in cases filed from the previous year and continued the trend of decreasing filed cases over the past 5 years. 74 protests were settled through Alternative Dispute Resolution (“ADR”), compared to 76 cases in fiscal year 2021 and the ADR success rate increased almost 10% to 92%.
Only 13% of protests resolved on the merits by GAO were sustained, which is down 2% from the prior year. However, the effective rate for protests rose from 48% in fiscal year 2021 to 51% in fiscal year 2022. “Effectiveness rate” is “based on a protester obtaining some form of relief from the agency,” either by voluntary agency corrective action or GAO sustaining the protest. According to the report, the most prevalent grounds for sustaining protests during the fiscal year were: (1) unreasonable technical evaluation; (2) flawed selection decision; and (3) flawed solicitation. This data may be beneficial for contractors as it tends to show which issues are more likely to be sustained.
The biggest takeaway from this year’s report is the significant 12% decrease in cases filed, particularly after cases were already down 12% in fiscal year 2021. There are multiple possible reasons for this drop in cases. Less contractors may be filing protests due to the Department of Defense’s enhanced debriefing policy in place since 2018. Now, offerors are provided more information about why they lost a protest, which may have resulted in less contractors filing protests. Additionally, businesses may be more regularly choosing to file claims with the Court of Federal Claims rather than with GAO. However, despite the drop in cases filed, this year showed a slight increase in the percentage of cases that received some form of relief. With just over half of cases filed receiving some type of relief, businesses may be more willing to make the decision to file a protest, particularly when the stakes are high.
Protesting an award should be a data driven, fact specific, strategically assessed, and appropriately funded decision for any business. General Counsel, P.C. helps our clients reach critical decisions before protesting an unsuccessful award or intervening as a successful awardee, litigating bid protests through to decision, and adapting post-decision internal methods for a more successful acquisitions win plan.