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

A Chambers-rated government contracts practitioner, Jay Carey focuses his practice on bid protests, and regularly represents government contractors before the U.S. Government Accountability Office and the Court of Federal Claims. He has prosecuted and defended more than 80 protests, including some of…

A Chambers-rated government contracts practitioner, Jay Carey focuses his practice on bid protests, and regularly represents government contractors before the U.S. Government Accountability Office and the Court of Federal Claims. He has prosecuted and defended more than 80 protests, including some of the most high-profile protests in recent years, for clients in the aerospace and defense, biotechnology, healthcare, information technology, and telecommunications sectors. Mr. Carey also counsels clients on compliance matters and all aspects of federal, state, and local government procurement and grant law. He counsels clients extensively on organizational conflicts of interest (OCIs) and on strategies for protecting and preserving intellectual property rights (in patents, data, and software).

Photo of Kayleigh Scalzo Kayleigh Scalzo

Kayleigh Scalzo represents government contractors in 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…

Kayleigh Scalzo represents government contractors in 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, Port Authority of New York and New Jersey, federal and state agencies, and state courts. She is also a co-head of the firm’s Claims, Disputes, and Other Litigation Affinity Group within the Government Contracts practice.

Kayleigh has particular experience navigating state and local procurement matters at both ends of the contract lifecycle, including bid protests and termination matters. In recent years, she has advised and represented clients in connection with procurements in Alaska, Arizona, California, the District of Columbia, Illinois, Indiana, Kansas, New Jersey, New York, Pennsylvania, Tennessee, Texas, and Virginia.

Kayleigh is a frequent speaker on bid protest issues, including the unique challenges of protests in state and local jurisdictions.