On Tuesday, GAO released its Bid Protest Annual Report to Congress for Fiscal Year 2022, which provides bid protest statistics and other interesting information regarding GAO’s protest system.

  • The number of protest filings dropped by 12% from FY21.  After a 12% drop in FY21, protest filings went down another 12% in FY22, with the lowest number of cases filed since FY08.  
  • The sustain rate dipped from 15% to 13%.  The sustain rate considers only the subset of cases that go all the way to a decision on the merits, and measures the percentage of those decisions that sustained the protest.  In FY22, GAO issued 455 merit decisions, and 59 of those were sustained, resulting in a sustain rate of 13% — solidly within GAO’s historical range of sustain rates.  The three most prevalent reasons for sustaining protests in FY22 were (1) unreasonable technical evaluation; (2) flawed selection decision; and (3) flawed solicitation. 
  • The effectiveness rate was a high 51%.  A significant number of protests filed at GAO do not result in a decision on the merits because agencies voluntarily decide to take corrective action before a decision on the merits is reached.  As a result, the more indicative statistic for favorable outcomes in a bid protest is the “effectiveness rate,” which measures the percentage of all protests filed in which the protester obtains “some form of relief from the agency . . . either as a result of voluntary agency corrective action or [GAO] sustaining the protest.”

    The 51% effectiveness rate for FY22 is the highest ever recorded by GAO, matching the all-time high of 51% in FY20 and greater than the FY21 effectiveness rate of 48%.  That means that in slightly more than half of all protests in FY22, the protester obtained some form of relief, confirming that protests can be worthwhile for disappointed offerors who have legitimate concerns about a procurement.
  • The number of hearings dropped to .27%.  Hearings are increasingly rare especially as compared to a decade ago, when 8-10% of fully-developed cases resulted in a hearing.  GAO conducted hearings in only 2 cases in FY22.

GAO’s annual bid protest report continues to provide useful information regarding GAO’s protest system.

Photo of Jay Carey Jay Carey

Recognized by Chambers as one of the nation’s top bid protest lawyers and government contracts practitioners, Jay Carey represents clients in complex, high-stakes government procurements often worth billions of dollars. He is a vice-chair of the firm’s Government Contracts practice group and a…

Recognized by Chambers as one of the nation’s top bid protest lawyers and government contracts practitioners, Jay Carey represents clients in complex, high-stakes government procurements often worth billions of dollars. He is a vice-chair of the firm’s Government Contracts practice group and a co-chair of the Aerospace, Defense, and National Security industry group.

Jay has won bid protests collectively worth more than $100 billion, for clients across a range of industries — including aerospace & defense, energy, healthcare, biotechnology, cybersecurity, IT, and telecommunications. He litigates protests before the U.S. Government Accountability Office (GAO); the Court of Federal Claims (COFC); and state tribunals across the country. A list of his recent wins can be found under the “Representative Matters” tab.

In addition, Jay advises clients on compliance matters, conducts internal investigations, and defends against investigations by federal and state agencies. He also counsels clients on matters related to the formation of government contracts, including organizational conflicts of interest and the protection of intellectual property rights when entering into procurement contracts, grants, cooperative agreements, and “Other Transaction Authority” agreements with the government.

Jay serves as co-chair of the American Bar Association Public Contract Law Section’s Bid Protest Committee.

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Photo of Kayleigh Scalzo Kayleigh Scalzo

Ranked by Chambers USA among government contracts practitioners, Kayleigh Scalzo represents government contractors in bid protests and other high-stakes litigation matters with the government and other private parties. She has litigated bid protests in a wide variety of forums, including the Government Accountability…

Ranked by Chambers USA among government contracts practitioners, Kayleigh Scalzo represents government contractors in bid protests and other high-stakes litigation matters with the government and other private parties. She has litigated bid protests in a wide variety of forums, including the Government Accountability Office, U.S. Court of Federal Claims, U.S. Court of Appeals for the Federal Circuit, FAA Office of Dispute Resolution for Acquisition, federal and state agencies, and state courts.

Kayleigh a co-chair of the American Bar Association Public Contract Law Section’s Bid Protest Committee. She is also a frequent speaker on bid protest issues.

Kayleigh maintains an active pro bono practice focused on immigration issues and gender rights.

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Photo of Chanda Brown Chanda Brown

Chanda Brown advises clients on complex national security, defense, regulatory compliance and government contract matters, including bid-protests, size protests, internal investigations and the allocation of government rights in patents. For exporters, she provides guidance to clients regarding the export and import of dual…

Chanda Brown advises clients on complex national security, defense, regulatory compliance and government contract matters, including bid-protests, size protests, internal investigations and the allocation of government rights in patents. For exporters, she provides guidance to clients regarding the export and import of dual use and military products under the Export Administration Regulations and the International Traffic in Arms Regulations. Her work has involved responding to federal agency enforcement actions, assisting with export licensing and registrations, drafting export control plans, conducting product self-classifications and voluntary self-disclosures.

In corporate transactions and public company representations, Chanda performs due diligence in connection with large and small government contractors. In transactions involving acquisitions by non-U.S. companies, she has helped clients navigate complex transactions before the Committee on Foreign Investment in the United States (CFIUS).

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