On November 18, GAO released its annual report to Congress under the Competition in Contracting Act of 1984, 31 U.S.C. § 3554(e)(2), disclosing the following bid protest statistics for FYs 2010-2014:
The number of total cases filed was up 5% from the previous year to 2,561. FY 2013 had seen a slight decrease in the number of cases filed for the first time since FY 2006. This year’s increase suggests that the dip in FY 2013 may have been anomalous, possibly a result of sequestration and the resulting furloughs of employees with acquisition responsibilities.
The sustain rate for FY 2014 dropped to 13%, a 4% decrease from the previous year. However, the effectiveness rate – which captures all instances in which the protestor obtained some form of relief – remained constant at 43%. Thus, while GAO sustained fewer protests in FY 2014, agencies were more apt to take voluntary corrective action. Ultimately, nearly half of all protestors achieved some form of relief.
By contrast, GAO employed alternative dispute resolution (“ADR”) techniques in only 96 cases in FY 2014, a 33% drop off from the prior year and the least in five years. However, this could be explained by agencies’ increased propensity to take corrective action early on in the protest process, and is consistent with the steady effectiveness rate described above. But it is difficult to draw conclusions about why ADR proceedings were comparatively rare this year.
In addition, the number of cases in which GAO conducted a hearing ticked up by 35% to 42, or 4.7% of cases filed. This represents a reversal of the steady decrease in the number of GAO hearings held over the last decade.
For just the second year, GAO was also required to report on the most prevalent grounds for sustaining protests, which this year included: 1) failure to follow the evaluation criteria, 2) flawed selection decision, 3) unreasonable technical evaluation, and 4) unequal treatment. Notably, this is a change from last year (FY 2013) in which the most prevalent reasons for sustaining protests were: (1) failure to follow solicitation criteria; (2) inadequate documentation; (3) unequal treatment; and (4) unreasonable price/cost evaluation. It is important to remember that this data includes only cases decided on the merits, not those in which agencies took corrective action. Agencies are not required to and do not report on the reasons why they decide to take voluntary corrective action.
Finally, the FY 2014 report also addresses the effect of the October 2013 government shutdown on GAO’s proceedings. Remarkably, GAO survived the shutdown without a significant impact on its performance. There were 280 active bid protest cases pending at GAO when the agency – like the rest of the federal government – shut down for 16 days in October 2013. As a result, the standard 100-day deadline for resolving those 280 cases was extended by 16 calendar days. GAO was able, however, to resolve all but 39 cases within the typical 100-day timeframe, and only used the maximum 16-day extension in 5 cases. Thus, the numbers reflect that GAO recovered quickly and the shutdown did not result in major delays for pending protests.