On October 26, 2023, the U.S. Government Accountability Office (GAO) released its Annual Report on Bid Protests for Fiscal Year 2023.
The total number of protests filed and the number of protests sustained by GAO increased significantly compared to Fiscal Year 2022—and GAO’s “Sustain Rate” jumped to 31%. GAO downplayed these increases to a degree, highlighting that it received “an unusually high number of protests challenging a single procurement”—the Department of Health and Human Services’ award of Chief Information Officer-Solutions and Partners 4 (CIO-SP4) government-wide acquisition contracts—which resulted in over 100 sustained protests. Nonetheless, even excluding the CIO-SP4 protests, it appears that GAO’s “Effectiveness Rate” (the percentage of cases in which the protester received relief, such as voluntary corrective action or a GAO sustain) was comparable to prior years—at or near 50%. Thus, bid protests remain an important oversight mechanism for the federal procurement system.
The most prevalent grounds upon which GAO sustained protests in FY 2023 were (1) unreasonable technical evaluations; (2) flawed selection decisions; and (3) unreasonable cost or price evaluations. The most prevalent grounds for sustained protests over the past ten years are detailed in the table below:
GAO’s full statistics for FY 2023 are shown below:
We would like to thank Emily Golchini, Senior Law Clerk, for her contribution to this alert.
For further information, please contact:
Robert J. Sneckenberg, Partner, Crowell & Moring
rsneckenberg@crowell.com
