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On November 18, the Government Accountability Office ("GAO") released its much-anticipated Bid Protest Annual Report to Congress for Fiscal Year 2024, which was submitted to Congress on November 14. GAO's annual report is required under the Competition in Contracting Act of 1984 ("CICA") and provides the government contracting community with good insight into GAO's bid protest function, including key statistics and GAO's most prevalent grounds on which it sustained bid protests during FY24. [1]

Government contractors and other industry professionals that become familiar with GAO's annual report – and, more broadly, lessons learned from GAO's bid protest decisions – will likely gain confidence in their "go/no-go" bid protest calculus and the efficacy of the bid protest process.

Below is a snapshot of GAO's bid protest report:

Notable Statistics

• Number of Cases – 1,803 cases (down, 2,025 in FY23) [2]

• Sustain Rate – 16% (down, 31% in FY23)

• Effectiveness Rate – 52% (down, 57% in FY23) [3]

• Task Order Protests – 346 (down, 368 in FY23)

• Alternative Dispute Resolution – 76 (up, 69 in FY22)

Most Prevalent Grounds for Sustaining Protests

1. Unreasonable technical evaluation [4]

2. Flawed selection decision [5]

3. Unreasonable cost or price evaluation [6]

Takeaways

This year's bid protest report provides some interesting takeaways for government contractors and industry.

First, and excluding data from last year (FY23), where GAO saw a significant number of protests relating to the CIO-SP4 procurement, GAO saw an uptick in the number of protests from FY22. According to the report, GAO handled 1,740 protests, which was a decent increase from FY22, where GAO saw 1,595 protests. [7] And, perhaps more notably, while the overall trend at GAO has been downward, the opposite is happening at the Court of Federal Claims ("COFC"). From data shared at an ABA protest committee meeting, COFC saw a record number of protests last year, well over 300. We also learned that those protests aren’t just second-bite cases – protesters are skipping GAO altogether and going directly to the court. This will be interesting to track over the next couple of years.

Second, and excluding the FY23 outlier, the report shows that GAO's sustain rate increased to 16% from 13% in FY22. Notably, even if we looked at FY24 data and excluded the 119 protest sustains from the CIO-SP4 – from the "Merit (Sustain + Deny) Decisions" and "Number of Sustains" cells – the FY24 sustain rate still shows an increase from FY23, up from 14% (69/489).

Third, protesters have a 52% chance of obtaining some form of relief at GAO (voluntary corrective action or sustain). This "effectiveness rate" is great news – as it has been for several years now – and indicates that GAO's bid protest process works. It also shows that procuring agencies are willing to take corrective action to fix errors that were brought to light in a bid protest.

Fourth, GAO continued to see a significant number of protests involving GAO's jurisdiction over task orders, 346, which was a slight decrease from the 368 protests in FY23. Although the number as gone down over the last couple of years, when looking at the past decade, the numbers show an upward trajectory. With the continued prevalence of best-in-class, government wide acquisition contracts ("GWAC"), and other large multiple-award ID/IQ contracts, it will be interesting to see how these figures take shape over the next ten years.

Fifth, as also required by CICA, GAO included one instance in which an agency did not follow its recommendation. That protest, Pernix Fed., LLC, B-422122.2, Mar. 22, 2024, 2024 CPD ¶ 73, involved a contractor's challenge to a State Department procurement on a host of issues, including the relationship between the requirements to qualify as a U.S. person under the Omnibus Diplomatic Security and Antiterrorism Act of 1986, regulations promulgated by the Department of State implementing the Security Act, as well FAR requirements related to System for Award Management (SAM) registration. With its report, GAO also included a letter GAO sent to Congress regarding the Pernix case.

Conclusion

Overall, the FY24 statistics are interesting in three respects: (1) GAO is still a hotbed of bid protest activity, (2) the effectiveness rate remained above 50%, and (3) the volume of task order protests is a number worth tracking. Despite the overall drop in protests filed from FY24 (in part because of the CIO-SP4 protests), the number is up from FY22. The data also shows that protesters still have more than a 50% chance of obtaining some form of relief at GAO (voluntary corrective action or sustain). This is wonderful news for protesters who think that the agency erred in some procedural aspect of a procurement, like the flaws identified above (e.g., unreasonable cost/price or technical evaluation, unequal treatment, or flawed selection decision).

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_{[1] See 31 U.S.C. § 3554(e)(2).
[2] The decreases are largely due to the significant number of bid protests during FY23 that involved the Department of Health and Human Services’ Chief Information Officer-Solutions and Partners 4 (“CIO-SP4”) government-wide acquisition contracts.
[3] The "effectiveness rate" is based on a protester obtaining some form of relief, either as a result of voluntary agency corrective action or GAO sustaining the protest.
[4] E.g., Kauffman and Assocs., Inc., B-421917.2, B-421917.3, Jan. 29, 2024, 2024 CPD ¶ 40; Deloitte Consulting, LLP, B-422094, B-422094.2, Jan. 18, 2024, 2024 CPD ¶ 36.
[5] E.g., Washington Bus. Dynamics, LLC, B-421953, Dec. 18, 2023, 2023 CPD ¶ 286.
[6] E.g., Criterion Corp., B-422309, Apr. 16, 2024, 2024 CPD ¶ 96.
[7] GAO's data is based on "B-" numbers and does not the reflect the total number of procurements that were challenged. In other words, if a protester files a supplemental protest, it adds to the "B-" number assigned to the protest. Thus, the number of procurements challenged is less than the number of protests.}