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GAO Releases Annual Bid Protest Report to Congress for FY 2021, Identifies New “Top Ground” for Sustains

Client Alert | 3 min read | 11.18.21

On November 16, 2021, the U.S. Government Accountability Office (GAO) released its Annual Report on Bid Protests for Fiscal Year 2021. While GAO received slightly fewer protests in FY2021 than in the year prior, the overall protest “Effectiveness Rate”—meaning the percentage of cases in which the protester received relief, such as voluntary corrective action or a GAO sustain—remained relatively constant, at 48% (the rate has ranged from 44% to 51% in each of the past five years).

GAO’s Annual Report also provides a helpful summary of the most common grounds for sustained protests in the prior year. In FY2021, those grounds were as follows: (1) unreasonable technical evaluation; (2) flawed discussions; (3) unreasonable cost or price evaluation; and (4) unequal treatment. The inclusion of “flawed discussions” on the list is notable—it is the first time in recent history that discussions-based protest arguments have proven so successful. Though firm conclusions are difficult to draw based upon a single year’s data, this may indicate that GAO is taking a closer look—and holding agencies to a higher standard—at the propriety and fairness of discussions.  

The chart below shows the top sustain grounds by year. As seen below, flawed technical evaluations and flawed cost/price evaluations continue to represent some of the most consistently successful grounds for sustains, meaning would-be protesters should consider whether they have a credible basis to make such arguments when weighing an award challenge. 

Most Prevalent Sustain Grounds By Year

2021

2020

2019

2018

2017

2016

2015

2014

2013

Flawed technical evaluation

X

X

X

X

X

X

X

Flawed cost/price evaluation

X

X

X

X

X

X

X

Flawed past performance evaluation

X

X

X

X

Flawed selection decision

X

X

X

X

Inadequate documentation

X

X

X

X

Unequal Treatment

X

X

X

X

Failure to follow evaluation criteria

X

X

X

Flawed solicitation

X

Flawed discussions

X

Contacts

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Client Alert | 5 min read | 12.12.25

Eleventh Circuit Hears Argument on False Claims Act Qui Tam Constitutionality

On the morning of December 12, 2025, the Eleventh Circuit heard argument in United States ex rel. Zafirov v. Florida Medical Associates, LLC, et al., No. 24-13581 (11th Cir. 2025). This case concerns the constitutionality of the False Claims Act (FCA) qui tam provisions and a groundbreaking September 2024 opinion in which the United States District Court for the Middle District of Florida held that the FCA’s qui tam provisions were unconstitutional under Article II. See United States ex rel. Zafirov v. Fla. Med. Assocs., LLC, 751 F. Supp. 3d 1293 (M.D. Fla. 2024). That decision, penned by District Judge Kathryn Kimball Mizelle, was the first success story for a legal theory that has been gaining steam ever since Justices Thomas, Barrett, and Kavanaugh indicated they would be willing to consider arguments about the constitutionality of the qui tam provisions in U.S. ex rel. Polansky v. Exec. Health Res., 599 U.S. 419 (2023). In her opinion, Judge Mizelle held (1) qui tam relators are officers of the U.S. who must be appointed under the Appointments Clause; and (2) historical practice treating qui tam and similar relators as less than “officers” for constitutional purposes was not enough to save the qui tam provisions from the fundamental Article II infirmity the court identified. That ruling was appealed and, after full briefing, including by the government and a bevy of amici, the litigants stepped up to the plate this morning for oral argument....

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