Just this week, the U.S. Government Accountability Office (“GAO”) released the GAO Bid Protest Annual Report to Congress for Fiscal Year 2014.
Bid Protest Statistics for Fiscal Year 2014
Every fiscal year, the GAO releases data regarding bid protest filings as compared with past years. These statistics often reveal important trends in the number of bid protests filed as well as the resolution of those protests. The statistics for Fiscal Year (“FY”) 2014 are no exception.
The number of cases filed in FY 2014 – including 2,445 bid protests, 50 cost claims, and 66 requests for reconsideration – were up by 5% from FY 2013. But of 556 cases that were decided on their merits, only 72 (or 13%) were sustained. The most prevalent reasons for sustaining protests were: (1) failure to follow evaluation criteria, (2) flawed selection decision, (3) unreasonable technical evaluation, and (4) unequal treatment.
The Report also indicates that ADR was only used in 96 cases despite the rather steady ADR success rate (number of cases resolved without a formal GAO decision) of 80-86% over the past five fiscal years.
Notably, 292 of the 2,458 cases closed in FY 2014 were attributable to the GAO’s bid protest jurisdiction over task orders. Remember that, pursuant to the Federal Acquisition Streamlining Act, the GAO has exclusive jurisdiction over protests of task and delivery orders valued in excess of $10 million.
Effect of Government Shutdown on Bid Protest Activities
The Report also discussed another noteworthy topic – the impact of the October 2013 Government Shutdown on bid protest activities. The Government Shutdown was a time of uncertainty for many government contractors. This uncertainty was magnified for contractors seeking to protest a contract award at the GAO, because the GAO – like most federal agencies – had ceased operations during the Shutdown.
Recall that time is always of the essence at the GAO. A post-award protest must be filed within 10 days of the date of award or within five days after a required and requested debriefing, whichever is later, to stay performance of the contract. And the GAO must decide a bid protest within 100 calendar days.
To account for the Government Shutdown, the GAO extended all deadlines by one day for each day that the GAO was shut down. The Report reveals that, despite these extensions, nearly all active cases were decided within 100 calendar days from when they were filed. Only 39 of the 280 active cases were not resolved within the original time frame.
As always, please do not hesitate to reach out for more information regarding the recent GAO Report and the implications of these statistics on a potential bid protest at the GAO.