2024 GAO Bid Protest Report Shows Notable Decrease in Merit Decisions

On November 14, 2024, the U.S. Government Accountability Office (GAO) released its Annual Report on Bid Protests for Fiscal Year 2024, containing the full statistics shown below:

Bid Protest Statsitcs for Fiscal Years 2020 - 2024

 

	FY2024	FY2023	FY2022	FY2021	FY2020
Cases Filed¹	1803 (down 11%)²	2025 (increase of 22%)³	1658 (down 12%)	1897 (down 12%)	2149 (down 2%)
Cases Closed⁴	1706	2041	1655	2017	2137
Merit (Sustain + Deny) Decisions	387	608	455	581	545
Number of Sustains	61	188	59	85	84
Sustain Rate	16%	31%	13%	15%	15%
Effectiveness Rate⁵	52%	57%	51%	48%	51%
ADR⁶ (cases used)	76	69	74	76	124
ADR Success Rate⁷	92%	90%	92%	84%	82%
Hearings⁸	.2% (1 case)	2% (22 cases)	.27% (2 cases)	1% (13 cases)	1% (9 cases)

The total number of protests filed (1,803) and sustained (61) decreased significantly from FY 2023’s near-record numbers—which were somewhat skewed, as GAO sustained over 100 protests in connection with a single government-wide acquisition contract—but largely aligned with historical numbers from FY 2021 and FY 2022.  This consistency is somewhat surprising considering recent anecdotal experience that protesters are increasingly turning to the Court of Federal Claims for their initial protest filings, and thus is worth keeping an eye on.

One statistic that did not align with historical norms, however, was the number of “Merit (Sustain + Deny) Decisions.”  Despite the number of protests filed being similar to prior years, GAO issued only 387 Merit Decisions—more than 25% fewer than the average for FY 2020 – FY 2023.  This decrease underscores the importance of effective initial protests—there is no guarantee that a bid protest will go the distance, so protesters should ensure that their initial protest grounds are as well-supported as possible to avoid dismissal.  Likewise, agencies and intervenors should strongly consider pursuing arguments that could lead to early dismissal. 

Regardless of the number of Merit Decisions, GAO’s 52% “Effectiveness Rate”—which is similar to recent years—shows that the protester received some form of relief, such as voluntary corrective action or a GAO sustain recommendation, in over half of protests filed.  The most prevalent grounds upon which GAO sustained protests in FY 2024 were (1) unreasonable technical evaluations; (2) flawed selection decisions; and (3) unreasonable cost or price evaluations.  The most prevalent grounds for sustained protests over the past ten years are shown in the table below:

Most Prevalent Sustain Grounds By Year

 

	2024	2023	2022	2021	2020	2019	2018	2017	2016	2015
Flawed technical evaluation	X	X	X	X	X	X	X	X	X
Flawed cost/price evaluation	X	X		X	X		X	X	X	X
Flawed past performance evaluation					X			X	X	X
Flawed selection decision	X	X	X			X	X		X
Inadequate documentation						X		X		X
Unequal Treatment				X		X
Failure to follow evaluation criteria										X
Flawed solicitation			X		X
Flawed discussions				X

Finally, GAO reported one instance in which an agency declined to follow a GAO sustain recommendation.  In Pernix Federal, LLC, B-422122.2, Mar. 22, 2024, 2024 CPD ¶ 73, GAO found that the State Department’s Security Act regulations conflicted with the agency’s interpretation of SAM registration requirements, and GAO recommended that the agency (1) reinstate the protester into the competition; (2) amend the solicitation to clarify the conflict; and (3) thereafter proceed with the procurement as appropriate.  The agency declined to follow GAO’s recommendation—a rarity.

We would like to thank Cherie J. Owen, Consultant, for her contribution to this alert.