While the number of protests has steadily increased over the past five years, the success rate for protesters in Fiscal Year 2011 was at its lowest during that time. GAO reported to Congress its Bid Protest Statistics for Fiscal Year 2011 on November 15, 2011 and it reflects a bit of a tougher year for protesters but no real significant changes from last year.
There were 2,353 protests filed in 2011, including 144 cost
claims and requests for reconsideration, but GAO sustained only 67
protests, a mere 16 percent. This compares to 2,226 filed
cases and a 19 percent sustain rate in 2010. Moreover, it is a
huge departure from the 27 percent sustain rate in 2007. GAO
reported that the "effectiveness rate," which GAO defines
as instances where a protester obtains "some form of relief
from the agency, as reported to GAO," remained constant from
last year at 42 percent. On the bright side, however, while
fewer protesters were successful, all federal agencies reported
that they fully implemented the GAO recommendations in those
sustained protests.
GAO closed 2,292 cases but issued only 417 "merit (sustain +
deny)" decisions, about 10 percent less than last year,
despite the 2 percent increase in the total number of filed
protests. The rest of the closed cases were disposed of, for
example, through dismissals for procedural errors, withdrawals by
protesters, or Alternative Dispute Resolutions ("ADR").
Down 2 percent from 2010 was the number of hearings held; 46
cases versus 61 in 2010; thus they were held in just 8 percent of
the cases filed versus 10 percent in 2010. ADR was also down,
having been used in only 140 cases, down from 159 in 2010. The
ADR success rate, however, was up 2 percent to 82 percent. So
fewer instances of ADR, but GAO was more successful in obtaining
resolution.
Years ago, those arguing against GAO jurisdiction over task order
protests prophesied paralyzing numbers of protests would
materialize. The numbers, however, do not bear that out
– GAO received only 147 such protests in 2011. This
is hardly a significant number given the multitude of very large
multiple award IDIQ contracts and enormous task orders awarded
thereunder.
Overall, no huge surprises emerge from GAO's statistics,
although the trends are, in some respects, headed in the wrong
direction for protesters. Then again, maybe the agencies are
getting better at buying? The complete GAO report to Congress
can be found here.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.