Bid Protest Sustains at GAO Hit a 20-Year High in the First Quarter of Fiscal Year 2016

Recently, the U.S. Government Accountability Office (“GAO”) released its annual bid protest report for Fiscal Year (FY) 2015, which reflected a slight decrease in the protest “sustain” rate, and a slight increase in the protest “effectiveness” rate, from FY 2014 to FY 2015.  While the statistics in GAO’s annual report are certainly interesting, what is far more interesting is GAO’s record setting first quarter of FY 2016.  In the first quarter of FY 2016 (Oct. 2015 – Dec. 2015), GAO issued more opinions sustaining bid protests than in any prior quarter since 1993.

GAO’s record setting quarter was buoyed by a record setting November 2015, wherein GAO issued 11 opinions sustaining bid protests, the highest monthly total since February 1996.

Is this spike in protest sustains at GAO a sign of things to come, or merely an anomaly?  So far it’s too early to tell.  However, early results from the second quarter of FY 2016 also reflect a higher than normal sustain rate, and are inline with the results seen in the first quarter of FY 2016.  As of today, GAO’s docket reflects that GAO has written at least seven opinions sustaining bid protests in January 2016 — more than double GAO’s monthly average number of sustains between FY 1995 and FY 2015.  One thing is for sure, GAO is on pace to shatter last year’s number of protest sustains. In the first four months of FY 2016, GAO has already “sustained” 55 bid protests, only 13 less than GAO “sustained” in all of FY 2015.[1]

 [1] In its annual report, GAO counts protest “sustains” not by the number of opinions issued sustaining protests, but rather in terms of the docket numbers (“B” numbers) covered by those opinions.  When a protestor files its initial protest, the protest is assigned a “B” docket number.  If that protestor files a supplemental protest, or other parties file protests concerning the same procurement action, multiple iterations of the same “B” number are assigned (i.e., .2, .3).  Each of these numbers is counted as a separate protest, even though GAO will usually issue a single opinion to cover all the protests concerning the procurement action.  Thus, when GAO issues a sustain opinion, and that opinion covers multiple “B” numbers, each “B” number counts as one “sustain.”  Using GAO’s method for counting “sustains,” the 22 opinions sustaining protests in Q1 of FY 2016 would be counted as 45 “sustained” protests, and the seven opinions sustaining protests in January 2016 (to date) would be counted as 10 “sustained” protests.