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

Client Alert | 4 min read | 11.08.22

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. 

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Client Alert | 4 min read | 08.07.25

File First, Facts Later? Eleventh Circuit Says That Discovery Can Inform False Claims Act Allegations in Amended Complaints

On July 25, 2025, the Eleventh Circuit Court of Appeals issued its decision in United States ex. rel. Sedona Partners LLC v. Able Moving & Storage Inc. et al., holding that a district court cannot ignore new factual allegations included in an amended complaint filed by a False Claims Act qui tam relator based on the fact that those additional facts were learned in discovery, even while a motion to dismiss for failure to comply with the heightened pleading standard under Federal Rule of Civil Procedure 9(b) is pending.  Under Rule 9(b), allegations of fraud typically must include factual support showing the who, what, where, why, and how of the fraud to survive a defendant’s motion to dismiss.  And while that standard has not changed, Sedona gives room for a relator to file first and seek out discovery in order to amend an otherwise deficient complaint and survive a motion to dismiss, at least in the Eleventh Circuit.  Importantly, however, the Eleventh Circuit clarified that a district court retains the discretion to dismiss a relator’s complaint before or after discovery has begun, meaning that district courts are not required to permit discovery at the pleading stage.  Nevertheless, the Sedona decision is an about-face from precedent in the Eleventh Circuit, and many other circuits, where, historically, facts learned during discovery could not be used to circumvent Rule 9(b) by bolstering a relator’s factual allegations while a motion to dismiss was pending.  While the long-term effects of the decision remain to be seen, in the short term the decision may encourage relators to engage in early discovery in hopes of learning facts that they can use to survive otherwise meritorious motions to dismiss....

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