GAO’s Annual Bid Protest Report: Fiscal Year 24 Protest Filings and Sustain Rate Fell after Unusually High Fiscal Year 23

On November 14, 2024, GAO released its Bid Protest Annual Report to Congress for Fiscal Year 2024, which provides bid protest statistics and other interesting information regarding GAO's protest system.

• The number of protest filings decreased by 11% from FY23. After a 22% increase between FY22 and FY23 to surpass 2,000 cases, the number of cases filed in FY24 fell 11% to 1,803. The FY23 increase, however, was due in part to over 300 protests challenging a single procurement, HHS's CIO-SP4 GWAC. The FY24 number is generally in line with the numbers in FY22 and FY21.
• GAO's sustain rate was 16%. Last year, GAO posted an unusually high sustain rate (again, due in large part to the 119 sustain decisions GAO issued related to the CIO-SP4 GWAC). This year, GAO's sustain rate was more in line with historical norms. The FY24 sustain rate of 16% is consistent with the typical sustain rate of 13%-15% for FY20 through FY22.
• The effectiveness rate remained high, at 52%. 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." GAO's effectiveness rate spiked to 57% in FY23 as a result of the 119 sustains related to the CIO-SP4 GWAC. The FY24 rate of 52% is consistent with effectiveness rates of between 48% and 51% for FY20 through FY22. The high effectiveness rate is evidence that most protesters are using the protest process to raise legitimate claims and concerns.
• The number of hearings decreased to only 1 case. The number of hearings also decreased from a FY23 high of 22 hearings to only 1 hearing in FY24. This represents only 0.2% of FY24 cases and suggests that the FY23 return to the pre-pandemic levels of FY19 may have been short-lived.
• There were fewer merit decisions than in recent years. Overall, there were only 387 merit (sustain or deny) decisions issued in FY24. This is the lowest number of merit decisions over any of the previous four fiscal years despite the fact that the overall number of filings remains similar. For example, in FY22 there were 455 merit decisions of the 1658 cases filed, and similarly, in FY21, there were 581 merit decisions of the 1897 cases filed. That, combined with the continued high effectiveness rate, suggests that more cases are being resolved by voluntary corrective action by the agency.
• One federal agency declined to implement GAO's recommendations. GAO also reported that, in a rare occurrence, one federal agency declined to implement GAO's recommendations. In Pernix Fed., LLC, B-422122.2, Mar. 22, 2024, 2024 CPD ¶ 73, the GAO sustained the protest, recommending that the agency reinstate the protester in the competition, and amend the solicitation to clarify SAM registration requirements with respect to de facto joint ventures. Following the agency's decision to decline to implement GAO's recommendation, the protester filed a protest at the Court of Federal Claims. The Court granted the government's motion for judgment on the administrative record and the protester has since appealed to the Federal Circuit.

GAO's annual bid protest report continues to provide useful information regarding GAO's protest system, and indicates that the protest process continues to be an effective mechanism for oversight of the federal procurement process.