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GAO Bid Protest Sustain Rate Remains High in FY 2017

Construction

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 2017, [GAO] sustained 17 percent of those protests.” By comparison, in fiscal year 2016, GAO sustained 22 percent of the protests resolved on the merits, and in fiscal year 2015, GAO sustained 15 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, while the percentage of fiscal year 2017 “sustained” protests—i.e., protests in which the GAO found in favor of the protester on the merits—is not quite as high as last year’s sustain rate, the fiscal year 2017 sustain rate is still very high by historical standards.

In addition, protesters received some relief in 47 percent of the protests (up from 46 percent in fiscal year 2016). 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 [GAO] sustaining the protest.” In fiscal year 2017, 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 2017 fiscal year were (1) unreasonable technical evaluation; (2) unreasonable past performance evaluation; (3) unreasonable cost or price evaluation; (4) inadequate documentation of the record; and (5) flawed selection decision. By comparison, in fiscal year 2016 the “most prevalent reasons” for sustaining protests were (1) unreasonable technical evaluation; (2) unreasonable past performance evaluation; (3) unreasonable cost or price evaluation; and (4) flawed selection decision.

Here is a link to GAO’s fiscal year 2017 bid protest report: http://www.gao.gov/assets/690/688362.pdf. If you have any questions about GAO’s report or the bid protest process in general, please do not hesitate to contact Aron Beezley.

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