In a speech released last week, Judge Patricia Campbell-Smith of the U.S. Court of Federal Claims shared information regarding the Court’s bid protest statistics in recent years. Although GAO publishes its bid protest statistics on its website each year in connection with its Bid Protest Annual Report to Congress, the Court’s statistics tend to be less well publicized.
Judge Campbell-Smith revealed that there were 135 protests filed with the Court in calendar year 2022 – two more than were filed in 2021. Of the cases filed in 2022, 38 were pre-award protests and 97 were post-award challenges. With respect to the Court’s decisions issued in 2022, the Court denied 127 protests. Judge Campbell Smith noted that, “for both years [2022 and 2021] the court sustained 27 protests.”
In the prior year – 2021 – the Court denied 124 protests. With 27 sustains and 251 denials over the course of 2021 and 2022, the Court’s sustain rate appears to be approximately 9.7%. Although this figure is slightly lower than GAO’s 2022 reported sustain rate of 13%, it is important to keep in mind that GAO’s calculations count each ‟B-number” as a separate protest. A protest of a single procurement by a single company could result in multiple B-numbers if – as is often the case – the company identifies supplemental protest grounds associated with the same procurement.
The Court does not appear to track the “effectiveness rate” of protests – a statistic GAO calculates based on a protester obtaining some form of relief from the agency, either as a result of voluntary agency corrective action or a sustained protest, which is calculated as a percentage of all protests closed in a particular fiscal year. Although GAO’s sustain rates (which reflect only published sustain decisions) tends to be fairly low, its effectiveness rate is consistently near or over 50% of all protests filed – reaching 51% in 2022.
While GAO’s and the Court’s bid protest statistics offer interesting insights into these forums, decisions regarding bid protest forum involve a number of considerations, including areas of substantive divergence between the Court and GAO, differing document production requirements, timeliness considerations, cost, and jurisdiction. A company analyzing its protest options should work closely with counsel to determine the most appropriate forum for the protest.
For further information, please contact:
Cherie J. Owen, Partner, Crowell
cowen@crowell.com
