GAO’s 2022 Bid Protest Report to Congress for FY 2021 Shows Better than 50% Chance of Obtaining Relief

On November 1, 2022, the U.S. Government Accountability Office (GAO) released its Annual Report on Bid Protests for Fiscal Year 2022.  While the number of protests GAO received dropped by 12% for the second year in a row, the overall protest “Effectiveness Rate”—meaning the percentage of cases in which the protester received some form of relief, such as voluntary corrective action by the agency or a GAO sustain—increased to 51%, tying Fiscal Year (FY) 2020 for the highest rate in 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 FY2022, those grounds were: (1) unreasonable technical evaluation; (2) flawed selection decision; and (3) flawed solicitation.  The inclusion of “flawed solicitation” on the list is notable—it has only made the list of “most successful grounds” one other time since GAO began tracking successful protest grounds.  This serves as a reminder that contractors should consider a pre-award protest as a potentially viable method of resolving solicitation flaws and ambiguities if other routes (such as the Q&A process) are unsuccessful or unavailable.    

The chart below shows the top sustain grounds by year.  As seen below, flawed technical evaluations continue to represent one 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
	2022	2021	2020	2019	2018	2017	2016	2015	2014	2013
Flawed technical evaluation	X	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		X
Inadequate documentation				X		X		X		X
Unequal Treatment		X		X					X	X
Failure to follow evaluation criteria								X	X	X
Flawed solicitation	X		X
Flawed discussions		X

The Report also indicates that bid protest hearings have all but disappeared—GAO conducted just 2 last year—representing less than 1% of cases.  The decrease is unlikely to be the result of remote work: GAO has been conducting remote hearings via teleconference or video conference since early 2020 and in 2021 it held 13 hearings.  Whatever the reason, protesters should keep in mind that nearly all protests will be won or lost on the written papers alone.

Three Key Takeaways:

1. GAO’s effectiveness rate of over 50 percent means that in more than half of the protests GAO granted the protester some form of relief, in most cases voluntary corrective action by the agency.  These statistics demonstrate that GAO remains an effective and efficient forum for challenging procurement decisions.
2. Given the success of pre-award solicitation challenges in recent years, contractors should consider pre-award protests to address solicitation flaws.
3. The near nonexistence of GAO hearings emphasizes the importance of effective written submissions in GAO protests.