Bid protests decline for fourth consecutive year

For the fourth consecutive year, the total number of bid protests filed by industry over federal procurements declined, according to the Government Accountability Office’s annual bid protest report issued to Congress Nov. 1.

GAO, which adjudicates bid protests, dealt with 1,658 protests in fiscal 2022, down 12% from the 1,897 filed in fiscal 2021. Fiscal 2022’s total is the fewest protests industry has filed since fiscal 2008—with 1,652 protests filed—and represents a nearly 40% decrease in annual protests filed compared to fiscal 2018’s recent high-water mark of 2,607.

Over fiscal 2022, GAO sustained 59 of 455 cases decided on merit—those cases that are either sustained or denied after a full GAO review—equating to a sustainment rate of 13%, slightly below last year’s sustainment rate of 15%. According to GAO, the most common reasons for sustaining protests in fiscal 2022 were unreasonable technical evaluations, flawed selection decisions and flawed solicitations. 

The “effectiveness rate”—defined by GAO as a protester obtaining some form of relief from the agency, either as a result of voluntary agency corrective action or a sustained protest—was 51% for protests filed in fiscal 2022, on par with previous years.

In the past, GAO officials have attributed enhanced debriefings and better communication overall between government and industry as factors in reducing big protest totals. In these debriefings, procurement officials typically provide companies with information upfront—rather than after potential litigation—that can help companies decide whether a protest makes sense. As always, the majority of bid protests filed by industry reach some form of resolution without GAO rendering an ultimate decision within 100 days.

“It is important to note that a significant number of protests filed with our office do not reach a decision on the merits, because agencies voluntarily take corrective action in response to the protest, rather than defend the protest on the merits. Agencies need not, and do not, report any of the myriad reasons they decide to take voluntary corrective action,” the report states.

GAO’s congressional report also indicates that one federal agency—the Department of the Navy, Naval Air Systems Command—“declined to implement” GAO recommendations. GAO is required by law to report such instances to Congress. GAO ultimately sustained a protest issued by Northrop Grumman regarding NAVAIR’s award of a contract to L3 Technologies, Inc., but the Navy bucked the decision and awarded the contract anyway. However, as GAO notes in its congressional report, the Navy agreed to take corrective action on the contract after the U.S. Court of Federal Claims issued an oral opinion on the protest.

“As a final matter, the agency’s corrective actions resulting from the Court’s oral opinion are consistent with GAO’s recommendations to correct the procurement errors,” the report states.