• R.D. Lieberman,Consultant

GAO Sustained Protests Increase in 2016

The Government Accountability Office (“GAO”) released its annual bid protest report to the Congress for fiscal year 2016 on December 15, 2016 (B-158766). The GAO actually received nearly 2,800 protests in FY2016, but dismissed or immediately denied nearly 80 percent of them, while actually considering and issuing decisions on only 616 protests, known as “merit decisions."

The sustain rate increased from an unusually low 12 percent in 2015 to an unusually high rate of 23 percent in 2016. The actual number of sustained protests doubled from 68 in 2015 to 2016. All of this took place while the number of actual bid protests decided on the merits remained about the same (587 in 2015 and 616 in 2016).

The GAO bid protest statistics for fiscal years 2012-2016 were as follows:

FY2012 FY2013 FY2014 FY2015 FY2016 Merit decisions 570 509 556 587 616 Sustained 106 87 73 68 139 Sustain rate 19% 17% 13% 12% 23% Effectiveness rate 42% 43% 43% 45% 46% Alternative. Dispute

Res. (ADR) cases 106 145 96 103 69 ADR success rate 80% 86% 83% 70% 84% Hearings 6% 3% 5% 3% 3%

(56 cases) (31 cases) (42 cases) (31 cases) (27 cases)

Note that the effectiveness rate remained about the same throughout—slightly above 40 percent. These are protests where the protester obtained some form of relief from the agency, either as a result of voluntary agency corrective action or the protest being sustained.

The percentage of cases where the GAO conducts a hearing remains small—under 5 percent.

Finally, the GAO reported on the most prevalent reasons for sustaining protests that were actually resolved on the merits in FY 2016. These were:

1. Unreasonable technical evaluation 2. Unreasonable past performance evaluation 3. Unreasonable cost or price evaluation 4. Flawed selection decision

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The website of Richard Donald Lieberman, a government contracts consultant and retired attorney who is the author of both "The 100 Worst Mistakes in Government Contracting" (with Jason Morgan) and "The 100 Worst Government Mistakes in Government Contracting." Richard Lieberman concentrates on Federal Acquisition Regulation (FAR) consulting and training, including  commercial item contracting (FAR Part 12), compliance with proposal requirements (FAR Part 15 negotiated procurement), sealed bidding (FAR Part 14), compliance with solicitation requirements, contract administration (FAR Part 42), contract modifications and changes (FAR Part 43), subcontracting and flowdown requirements (FAR Part 44), government property (FAR Part 45), quality assurance (FAR Part 46), obtaining invoiced payments owed to contractors,  and other compliance with the FAR. Mr.Lieberman is also involved in numerous community service activities.  See LinkedIn profile at https://www.linkedin.com/in/richard-d-lieberman-3a25257a/.This website and blog are for educational and information purposes only.  Nothing posted on this website constitutes legal advice, which can only be obtained from a qualified attorney. Website Owner/Consultant does not engage in the practice of law and will not provide legal advice or legal services based on competence and standing in the law. Legal filings and other aspects of a legal practice must be performed by an appropriate attorney. Using this website does not establish an attorney-client relationship. Although the author strives to present accurate information, the information provided on this site is not guaranteed to be complete, correct or up-to-date.  The views expressed on this blog are solely those of the author. FAR Consulting & Training, Bethesda, Maryland, Tel. 202-520-5780, rliebermanconsultant@gmail.com

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