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GAO Bid Protest Sustain Rate Nearly Doubles in FY 2016

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By Aron C. Beezley, Bradley

The Government Accountability Office (GAO) recently issued to Congress its annual bid protest report. Of particular note, the report states that, “[o]f the protests resolved on the merits during fiscal year 2016, [GAO] sustained over 22 percent of those protests.” By comparison, in fiscal year 2015, GAO sustained 12 percent of the protests resolved on the merits – a percentage that is in line with GAO’s historical protest “sustain rate” of approximately 10-12 percent. Thus, the percentage of “sustained” protests – i.e., protests in which the GAO found in favor of the protester on the merits – in fiscal year 2016 nearly doubled the percentage of protests sustained in fiscal year 2015, and nearly doubledGAO’s historical “sustain rate.”

In addition, protesters received some relief in 46 percent of the protests. GAO reports this  statistic as an “effectiveness rate” – i.e., the percentage of protests where the protester obtained “some form of relief from the agency” “either as a result of voluntary agency corrective action or in [GAO] sustaining the protest.” In fiscal year 2016, protesters thus received some form of relief from the agency in nearly half of the protests filed with GAO.

The report states that the “most prevalent reasons” for sustaining protests during the 2016 fiscal year were: (1) “unreasonable technical evaluation”; (2) “unreasonable past performance evaluation”; (3) “unreasonable cost or price evaluation”; and (4) “flawed selection decision.” In fiscal year 2015, by comparison, the “most prevalent reasons” for sustaining protests were: (1) “unreasonable cost or price evaluation”; (2) “unreasonable past performance evaluation”; (3) “failure to follow evaluation criteria”; (4) “inadequate documentation of the record”; and (5) “unreasonable technical evaluation.”

Here is a link to GAO’s fiscal year 2016 bid protest report. If you have any questions about GAO’s report or the bid protest process in general, please do not hesitate to contact the author of this article, who, along with his fellow lawyers at Bradley, handled more than 20 bid protests in 2016.

 

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