Last Tuesday, GAO released its Fiscal Year 2021 protest statistics, which as always contains a wealth of interesting information about GAO’s protest system.

  • Protest filings dropped by 12% from FY20.  After remaining fairly steady in FY19 and FY20, filings dropped in FY21, with the lowest number of cases filed since FY08.  It seems likely, however, that at least part of the drop is attributable to the pandemic, which may have slowed the pace of federal procurement in the spring and summer of 2020, leading to a smaller than usual wave of protests in the first quarter of FY21.
  • The sustain rate remained steady at 15%.  The sustain rate considers only the subset of cases that go all the way to a decision on the merits, and measures the percentage of those decisions that sustained the protest.  In FY21, GAO issued 581 merits decisions, and 85 of those were sustains, resulting in a sustain rate of 15% — solidly within GAO’s historical range of sustain rates.  The four most prevalent reasons for sustaining protests were (1) unreasonable technical evaluation; (2) flawed discussions; (3) unreasonable cost or price evaluation; and (4) unequal treatment.

But the more indicative statistic for favorable outcomes in a bid protest is the effectiveness rate, and . . .

  • The effectiveness rate remained high at 48%.  That figure is the second-highest effectiveness rate ever recorded by GAO (the all-time high of 51% occurred last year).  The effectiveness rate measures the percentage of all protests filed in which the protestor obtains “some form of relief from the agency . . . either as a result of voluntary agency corrective action or [GAO] sustaining the protest.”  So in nearly half of all protests in FY21, the protestors obtained some relief, confirming that protests can be worthwhile for disappointed offerors who have legitimate concerns about a procurement.
  • The number of hearings remained steady at 1%.  Hearings remain rare, especially as compared to a decade ago when 8-10% of fully-developed cases received a hearing.

GAO’s annual bid protest report is always an exciting event, and this year’s edition shows that GAO’s process has continued to run smoothly throughout an unprecedented time.

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Photo of Jay Carey Jay Carey

Recognized by Chambers as one of the nation’s top bid protest lawyers and government contracts practitioners, Jay Carey represents clients in complex, high-stakes government procurements often worth billions of dollars. He is a vice-chair of the firm’s Government Contracts practice group and a…

Recognized by Chambers as one of the nation’s top bid protest lawyers and government contracts practitioners, Jay Carey represents clients in complex, high-stakes government procurements often worth billions of dollars. He is a vice-chair of the firm’s Government Contracts practice group and a co-chair of the Aerospace, Defense, and National Security industry group.

Jay has won bid protests collectively worth more than $100 billion, for clients across a range of industries — including aerospace & defense, energy, healthcare, biotechnology, cybersecurity, IT, and telecommunications. He litigates protests before the U.S. Government Accountability Office (GAO); the Court of Federal Claims (COFC); and state tribunals across the country. A list of his recent wins can be found under the “Representative Matters” tab.

In addition, Jay advises clients on compliance matters, conducts internal investigations, and defends against investigations by federal and state agencies. He also counsels clients on matters related to the formation of government contracts, including organizational conflicts of interest and the protection of intellectual property rights when entering into procurement contracts, grants, cooperative agreements, and “Other Transaction Authority” agreements with the government.

Jay serves as co-chair of the American Bar Association Public Contract Law Section’s Bid Protest Committee.

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Photo of Kayleigh Scalzo Kayleigh Scalzo

Ranked by Chambers USA among government contracts practitioners, Kayleigh Scalzo represents government contractors in bid protests and other high-stakes litigation matters with the government and other private parties. She has litigated bid protests in a wide variety of forums, including the Government Accountability…

Ranked by Chambers USA among government contracts practitioners, Kayleigh Scalzo represents government contractors in bid protests and other high-stakes litigation matters with the government and other private parties. She has litigated bid protests in a wide variety of forums, including the Government Accountability Office, U.S. Court of Federal Claims, U.S. Court of Appeals for the Federal Circuit, FAA Office of Dispute Resolution for Acquisition, federal and state agencies, and state courts.

Kayleigh a co-chair of the American Bar Association Public Contract Law Section’s Bid Protest Committee. She is also a frequent speaker on bid protest issues.

Kayleigh maintains an active pro bono practice focused on immigration issues and gender rights.

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