At the close of each fiscal year, the U.S. Government Accountability Office (GAO) is required by the Competition in Contracting Act of 1984 (CICA) to submit a report of the bid protests before the GAO. A significant number of protests filed do not reach a merit decision due to voluntary corrective action. Because agencies are not required to report any reasons for voluntary corrective action, these yearly reports are particularly helpful in analyzing trends and concerns for contractors. Highlights from the FY2015 report:
The sustain rate has been declining since the 18.6% reported in FY2012; in FY2015 there were only 68 sustains out of the 587 merit decisions (12%). In FY2014, there were 72 sustains out of 556 merit decisions (13%). However, the number of cases filed has steadily increased since the 2,429 cases filed in FY2013, with 2,639 filed in FY2015.
About 13% of the cases closed this year were task or delivery order protests under IDIQ contracts, of which GAO has exclusive bid protest jurisdiction for challenges to task or delivery orders greater than $10 million. Almost 12% of closed cases in FY2014 were attributed to task or delivery orders.
In addition, the GAO is required to specify the following in their yearly report:
(1) Instances when a federal agency does not fully implement a GAO recommendation
This occurred once in FY2015. The case in question involved GAO’s determination that two contractors did not qualify as United States Persons under the Security Act. However, in spite of GAO’s recommendation, the Department of State chose to follow a Court of Federal Claims interpretation of the Act. Caddell Constr. Co., Inc., B-411005.1, B411005.2, Apr. 20, 2015, 2015 CPD ¶ 132.
(2) Any time GAO does not render a final protest decision within 100 days after filing
There were no instances of this in FY2015. This is a marked difference from FY2014, when GAO reported 39 cases that went beyond the 100-day time frame as a result of the Government shutdown.
(3) A summary of the most prevalent grounds for sustaining protests
In the three years that GAO has been required to report the most prevalent reasons for sustained protests, failure to follow evaluation criteria has remained among the top reasons. In addition, GAO featured five reasons in FY2015 rather than the four reported in previous years.
The top five reasons for sustaining a protest in FY2015:
- Unreasonable cost or price evaluation
- Unreasonable past performance evaluation
- Failure to follow evaluation criteria
- Inadequate documentation of the record
- Unreasonable technical evaluation
Savvy contractors can view this as a “checklist” of things to be aware of in their own procurements, as agency mistakes are the primary reasons for sustained protests.
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