On January 2, 2014, the Government Accountability Office (“GAO”) provided its Annual Report to Congress with data concerning overall protest filings for Fiscal Year (“FY”) 2013 and a summary of the most prevalent grounds for sustaining protests during the preceding year.
In FY 2013, the GAO received 2,429 cases, including 2,298 protests, 56 cost claims, and 75 requests for reconsideration. The number of new cases filed marks a slight reduction (2 percent) from the 2,475 cases filed in FY 2012 and the first decrease in newly filed cases since FY 2006, but, overall, new cases are up more than 22 percent since FY 2009 and more than 83 percent since FY 2006. In FY 2013, the GAO closed 2,538 cases, including 2,389 protests, 55 cost claims, and 86 requests for reconsideration. Of the cases closed, 259 were attributable to the GAO’s bid protest jurisdiction over task or delivery orders placed under indefinite-delivery/indefinite-quantity contracts.
Protestors’ success in filing with the GAO has remained relatively constant in the last five years. The rate at which protests have been sustained by the GAO has remained between 16 and 19 percent since FY 2009. Of the 2,538 cases closed in FY 2013, 509 reached a decision on the merits, with 87 (17 percent) being sustained. This marks a slight decrease from the 18.6 percent of protests sustained during FY 2012. However, it must be noted that protesters did not only achieve positive results through a merits determination by GAO. As reported by GAO, 43 percent of all cases closed in FY 2013 resulted in the protester obtaining some form of relief from the agency, either as a result of voluntary agency corrective action or GAO sustaining the protest. The GAO refers to this statistic as the “effectiveness rate” for closed cases.
New to GAO’s annual reporting for FY 2013 is a requirement to include a summary of the most prevalent grounds for sustaining protests during the preceding year. GAO reported that the most prevalent reasons for sustaining protests in FY 2013 were: (1) failure to follow the solicitation evaluation criteria; (2) inadequate documentation of the record; (3) unequal treatment of offerors; and (4) unreasonable price or cost evaluation. As noted in GAO’s report, agencies that voluntarily take corrective action in response to a protest rather than defend the protest on the merits do not report the reasons they took the corrective action.
Contractors suspecting that they may have a valid basis for protest should diligently pursue their options, particularly given the short deadlines involved. As the GAO’s statistics for FY 2013 and its preceding years show, protestors can often achieve an “effective” result from voluntary agency action in advance of a determination on the merits by the GAO.