On December 15, 2016, GAO released its Annual Report to Congress for Fiscal Year 2016, including its updated Bid Protest Statistics for Fiscal Years 2012-2016. The Report, which GAO is required to submit pursuant to the Competition in Contracting Act of 1984, 31 U.S.C. § 3554(e)(2), identifies the most common reasons for sustained protests in FY 2016: (1) unreasonable technical evaluation; (2) unreasonable past performance evaluation; (3) unreasonable cost or price evaluation; and (4) flawed selection decision. And, oh boy, were there a lot of sustains.
The full statistics, copied below, reveal that GAO sustained nearly as many protests in FY 2016 (139) as it did in FYs 2015 and 2014 combined (140). Interestingly, however, the overall “effectiveness rate”—i.e., the percentage of cases in which the protester received some form of relief—ticked up only one percentage point from FY 2015 (from 45% to 46%). The increased percentage of sustained protests, combined with the similar (though steadily increasing) effectiveness rate, means that agencies took corrective action in far fewer meritorious protests. That’s a bit surprising given that, anecdotally at least, corrective action is still a common outcome in response to strong protest filings. It will be worth watching whether this was just a one year exception, or if we’ve now passed the high-water mark for corrective action seen in FYs 2014 and 2015.
The statistics also reveal that although the overall number of protests filed was up, GAO utilized its Alternative Dispute Resolution (ADR) procedures and formal hearings in far fewer cases. While the number of hearings was down only 4 from FY 2015 (from 31 to 27), GAO used its ADR procedures in only 69 cases, far below the average usage (112.5 cases) over the prior four years. It is possible that the decreased use of ADR—which can result in agencies taking corrective action late into the 100-day protest window—might have contributed to the increased percentage of protests sustained on the merits.