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Key Takeaways from the GAO’s Bid Protest Report to Congress for Fiscal Year 2024

  

By Sarah K. Carpenter of Smith Currie Oles

Originally published December 31, 2024

Key Takeaways

  • The number of protests filed with the Government Accountability Office (“GAO”) decreased by 11 percent in 2024.
  • The GAO’s sustain rate of 16 percent in 2024 decreased from 31 percent in 2023.
  • The GAO’s effectiveness rate of 52 percent in 2024 decreased from 57 percent in 2023.

 

Introduction

On November 14, 2024, the Government Accountability Office (“GAO”) published its Bid Protest Annual Report to Congress for Fiscal Year 2024. Mandated by the Competition in Contracting Act (“CICA”), the GAO report includes key data and analytics which provide valuable insight for contractors into current bid protest trends and developments at the GAO. In 2023, the numbers reported by the GAO in its report to Congress were skewed by a single procurement which resulted in over 300 protests. For 2024, the statistics reported by the GAO in its report show a return to normal with numbers in line with the last several years, excluding the 2023 anomaly. The GAO remains the number one choice for contractors to fight and win bid protests on federal procurements.

The Number of Protests Filed with the GAO in 2024 Decreased, A Return to Normal.

From 2020 to 2023, there was a downward trend in the number of protests filed with the GAO. In 2023, this trend was disrupted by a 22 percent increase in the number of protests filed with the GAO. This jump in the numbers is largely attributable to a single procurement which resulted in over 300 protests. In 2024, there was an 11 percent decrease in the number of protests filed with the GAO, falling in line with the numbers from prior fiscal years.

The GAO’s Sustain Rate Decreased, Falling in Line with Historical Norms.

In 2023, the GAO reported an unusually high sustain rate of 31 percent. This higher sustain rate was an outlier from prior years’ sustain rates (13 percent in 2022, 15 percent in 2021 and 2020). The GAO’s sustain rate for 2024 decreased to 16 percent, falling in line with historical norms.

Either a Voluntary Corrective Action or Sustain Protest Occurred in More than Half of Protests Filed.

For 2024, the GAO reports a 52 percent effectiveness rating, meaning that in more than half of the protests filed at the GAO in 2024, either a voluntary corrective action or sustained protest occurred. This effectiveness rating is on par with effectiveness ratings from the last several years which range from 48–57 percent. Corrective action by the Agency in the face of a protest and GAO sustains of a protest result in the protestor obtaining the chance to compete and win the protested contract award or correct the terms of the solicitation or correct other pre-award issues to ensure a fair competition.

The GAO Identifies the Three Most Prevalent Grounds for Sustaining Protests.

Out of the 16 percent of protests sustained by the GAO in the 2024 fiscal year, the GAO identifies the following as the most prevalent reasons the protests were sustained along with examples of specific 2024 decisions:

  • Unreasonable technical evaluationg., finding multiple aspects of the agency’s technical evaluation unreasonable, including where the contemporaneous record did not support the agency’s conclusion that the awardee’s quotation met solicitation requirements under the management plan factor pertaining to procedures for protecting certain data, because the awardee’s quotation in fact did not address how that data would be protected. See, Kauffman and Assocs., Inc., B-421917.2, B-421917.3, Jan. 29, 2024, 2024 CPD ¶ 40
  • Flawed selection decisiong., finding the agency’s best-value tradeoff determination unreasonable where the determination was based on a flawed underlying evaluation, the agency failed to look beyond assigned adjectival ratings to qualitatively compare quotations, and the agency did not document its rationale for its source selection conclusions. See, Washington Business Dynamics, LLC, B-421953, Dec. 18, 2023, 2023 CPD ¶ 286
  • Unreasonable cost or price evaluationg., finding the agency’s price realism evaluation unreasonable where the record did not show that the agency considered whether the protester’s technical approach could reasonably be performed at the proposed price. See, Criterion Corp., B-422309, Apr. 16, 2024, 2024 CPD ¶ 9


Notably, the three prevalent grounds for sustaining protests listed above are identical to those identified by the GAO in its 2023 report to Congress.

Conclusion

The greater than 50 percent effectiveness rate in 2024 (and, more generally, in the last several years) indicates that the majority of the time the GAO bid protest process is a valuable tool for federal government contractors to get another chance to compete for work for post award protests or a better chance to compete through pre-award protests.



Sarah Carpenter is a Partner at Smith Currie Oles. Carpenter represents clients from the ground up—from contract drafting and negotiation to issues of complex litigation. She is experienced with all project delivery models and matters involving changes, schedule delays and acceleration, defects, differing site conditions, payment disputes, and contract suspensions and terminations. She can be reached at skcarpenter@smithcurrie.com or 704.334.3459.

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