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Under the Competition in Contracting Act of 1984
("CICA"), GAO is required to report annually to Congress
on each instance in which (1) a federal agency did not fully
implement a recommendation made by GAO in connection with a bid
protest decision, or (2) a final decision in a protest was not
rendered within 100 days after the date the protest was submitted
to the Comptroller General, during the prior fiscal year. GAO
reported no such instances for Fiscal Year 2018.
CICA also requires the Annual Report to include "a summary
of the most prevalent grounds for sustaining protests" during
the preceding fiscal year. For 2018, GAO reported the most
prevalent reasons for sustaining protests were: (1) an unreasonable
technical evaluation, (2) an unreasonable cost or price evaluation;
and (3) a flawed selection decision.
Finally, the Annual Report includes statistical data for GAO
filings during FY2018, as well as a comparison to such filings from
FY2014 to FY2017. Highlights include:
2,607 cases were filed with GAO
during FY2018, which represents a slight increase (less than 1%)
from FY2017. Of these, 2,474 were bid protests (up from 2,433 in
FY2017), with the balance being cost claims or requests for
reconsideration.
622 cases resulted in a decision on
the merits. This is up from 581 (a 7% increase) in FY2017.
Of the protests resolved on the
merits during FY2018, only 15% were sustained. This is down from
17% in FY2017 and 23% in FY2016.
There was a significant reduction in
the number of evidentiary hearings. Only 5 cases went to hearing,
representing 0.51% of the cases closed during the fiscal year. The
prior four years had seen 17 (FY2017), 27 (FY2016), 31 (FY2015) and
42 (FY2014) hearings conducted. These represented, respectively,
1.70%, 2.51%, 3.10% and 4.70% of the cases closed in those
years
The FY2018 effectiveness rate of
protests, which is based on a protester obtaining some form of
relief from the agency, either as a result of voluntary agency
corrective action or GAO sustaining a protest, was 44%. This is a
decrease of 3% from FY2017.
As the foregoing statistical data demonstrate, pursuing a
successful protest at GAO continues to be the exception, not the
rule, with the vast majority of protests proceeding to a final
decision resulting in a denial or dismissal. But even when
voluntary agency corrective action is considered (i.e.,
where the protestor gets some sort of remedial relief, but GAO does
not rule on the ultimate merits of the protest), less than half of
all protests result in any kind of relief. In many cases where
corrective action ensues, whether voluntarily or a result of a GAO
decision, that corrective action generally gives the successful
protester only a "second bite" at the proverbial
"apple," usually in the form of a re-evaluation or a
reopening of the competition. In other words, "winning a
protest" is not the same as "winning a
contract."
Accordingly, contractors considering filing a protest should
work closely with their counsel to evaluate the merits of their
case and the probability of success before filing, and to ensure
that if they file, their strongest protest grounds are presented
clearly and convincingly before GAO.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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PODCAST: What's The Deal With Federal Contractors And The OFCCP? The Basics
