Number of GAO Protests Sees One of the Largest Year-Over-Year Increases in FY2016

Known as one of three options for contractors to turn to when there is a disagreement in the procurement process, the Government Accountability Office (GAO) provides a third-party, unbiased option for industry to protest during an acquisition. Contractors also have the option of submitting protests directly to the respective Contracting Office or going through the United States Court of Federal Claims system.

However, the use of GAO in protest situations continues to increase. In a 6% increase from the previous year, the agency received 2,789 cases over the 2,639 it received in FY 2015, according to the GAO’s annual report to Congress. Those numbers include every action that was filed, regardless of it being a supplemental protest or part of a multiple protest to the same procurement. Of the 2,789 cases received, 2,621 were protests, 80 cost claims, and 88 requests for reconsideration.

The GAO also reports that 2,734 cases were closed this past fiscal year, 375 of which were filings centered on task or delivery orders. In FY 2016, 77% of closed protest cases did not include merit decisions by the GAO and were likely resolved by remedial action on the part of the Contracting Office.

Of significant note are the number of cases that have been sustained. In FY 2016, 139 protests were sustained by the GAO, marking a 22.5% sustain rate increase and the largest year-over-year increase to date from the 12% of cases sustained in FY 2015. The GAO provided four reasons a majority of the sustained decisions were based on: 

1. Unreasonable technical evaluation
2. Unreasonable past performance evaluation
3. Unreasonable cost or price evaluation
4. Flawed selection decision

Wiley Rein LLP also released an in-depth look at the GAO protest system.  It reported that the sustain rate seen in the past fiscal year varied between agencies with the Department of Homeland Security at the lowest and the General Services Administration at the highest rate. Moreover, protestors that filed at least one supplemental protest had an 80% better chance at a sustained decision over those that did not file supplemental protests.

Also of interest is the fact that the government’s congressional watchdog reports that there was no instance in FY2016 where a federal agency did not fully implement a recommendation made by the office regarding a protest decision. Moreover, the GAO stated that every decision that was made by the agency in FY 2016 met the 100 day deadline promised to contractors after a protest is submitted.

If the GAO were in a popularity contest for protests, it might take the win in the contractor community. The agency’s involvement in protests is not going away either. Last week, the President signed H.R.5995, to make permanent the GAO authority over protests of civilian task orders.