For the second time in three years, protesters at GAO were more likely to be successful than not. While the actual sustain rate remained low—13 percent—the effectiveness rate was 51 percent.
GAO recently released its annual report to Congress. The sustain rate tends to garner the most attention, but it is the effectiveness rate that practitioners love to see. The sustain rate is KISS. The effectiveness rate is The Velvet Underground.
Don’t get me wrong. We love sustains. KISS rules. I’ve seen KISS twice. Ace Frehley is an underrated guitar god and man they put on a show. But The Velvet Underground is one of the most important bands of all time. Lou Reed is a genius.
What were we talking about again?
Oh, yeah. GAO’s annual report. It came out on Nov. 1 and shows that more often than not, GAO bid protests are met with at least some success. Success is defined as some form of relief from the agency either due to a sustain or the agency taking voluntary corrective action. When corrective action occurs, the protest is dismissed. For that reason, it seems to happen somewhat behind the scenes. This report shows, it’s quite common.
But that’s not all. The report presented some other interesting tidbits.
Yes, the sustain rate was pretty low but not shockingly so. The sustain rate for the previous four years was 15 percent, 15 percent, 13 percent, and 15 percent. So 2022’s rate is a little low but pretty much in line with where GAO usually is.
What’s surprising is the total number of sustains. There were only 59 sustains issued last year. That’s down from 92 in 2018. The reason being is that the number of GAO protests has been steadily declining. In 2018, there were 2,607 bid protests filed at GAO. In 2022, there were 1,655. That’s a 36 percent drop.
There could be lots of reasons for this. Some might think that the chances of winning at GAO are pretty low—so why bother? As noted above, that’s not entirely correct.
Another possibility is that there are more barriers now to filing a protest. Protests used to be filed by email. Now they go through the Electronic Protest Docket System (“EPDS”), which requires the filer to sign up and agree to certain stipulations. There’s also a $350 filing fee. These are low bars. But they make it harder to file than clicking “send.”
Probably the biggest culprit is that agencies are relying more and more on huge multi-award indefinite contracts. They lead to lots of protests at the outset (for example) but once those are settled protesting task order awards can be difficult. GAO only has jurisdiction to hear bid protests on high-value task orders ($10 million for civilian agencies and $25 million for the Department of Defense).
Another theory is that more protesters are going to the Court of Federal Claims. GAO will dismiss a protest when the same procurement is protested at the Court. That’s led some to believe that they might as well skip GAO. The Court of Federal Claims doesn’t make an annual report to Congress, so it is not currently known if those actions are rising or, like at GAO, dropping.
These are just a few theories. There’s really no way to know for sure why GAO’s protest numbers are down.
Nevertheless, as the report showed, those who did protest are beginning to see the light.