GAO Sustain Rate and Effectiveness Rate Remain Relatively Stable in 2018

The Government Accountability Office (“GAO”) released its annual bid protest report to the Congress for fiscal year 2018 on November 27, 2018 (B-158766). The GAO actually received 2,607 protests in fiscal year (“FY”) 2018 but dismissed or immediately denied or dismissed a substantial number of them, while actually considering and issuing decisions on 622 protests, known as “merit decisions.” This was a small increase compared to FY 2017.

The GAO sustain rate decreased only two percent, from 17 percent in FY 2017 to 15 percent in FY 2018.

The GAO bid protest statistics for fiscal years 2014-2018 were as follows:

GAO Bid Protest Statistics for Fiscal Years 2014-18
FY2014FY2015FY2016FY2017FY2018
Merit decisions556587616581622
Sustained72681399992
Sustain rate13%12%23%17%15%
Effectiveness rate43%45%46%47%44%
Alternative Dispute Resolution (ADR) cases96103698186
ADR success rate83%70%84%90%77%
Hearings5% (42 cases)3% (31 cases)3% (27 cases)2% (17 cases)0.5 (5 cases)

The “effectiveness rate” remained about the same, 47 percent in 2017 and 44% in 2018. These are protests where the protester obtains some form of relief from the agency, either as a result of voluntary agency corrective action or the protest being sustained.

The percentage of cases where the GAO conducted a hearing remained small—only 2 percent in 2017, declining to only 5 cases, or half of one percent in 2018.

GAO also reported that:

  • There were no instances in which a federal agency did not fully implement a GAO recommendation; and
  • GAO issued its decision on every protest within 100 days, as required by law.

Finally, the GAO reported on the most prevalent reasons for sustaining protests that were actually resolved on the merits in FY 2017. These were:

  1. Unreasonable technical evaluation
  2. Unreasonable past performance evaluation
  3. Flawed selection decision

The GAO also noted that a significant number of protests it received did not reach a decision on the merits because agencies voluntarily took corrective action rather than defend the protest on the merits.

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Richard D. Lieberman’s FAR Consulting at https://www.richarddlieberman.com/, and Mistakes in Government Contracting at https://richarddlieberman.wixsite.com/mistakes/.

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