As required by the Competition in Contracting Act of 1984, 31 U.S.C. §§3554 et al. (CICA), the U.S. Government Accountability Office (GAO) has certain bid protest-related jurisdiction over executive agencies. As part of its duties, the GAO is obligated to annually report to Congress on its prior fiscal year (FY) bid protest statistics relating to, among other things, number of filings, sustain rates, cases resolved though alternative dispute resolution and corrective action. GAO is also obligated to report any outliers or situations where an agency refused to follow GAO’s recommendation (see, our prior posts on the Kingdomware Technology case where the Department of Veterans Affairs refused to follow GAO’s recommendations and GAO reported it to Congress. That case ultimately went to the U.S. Supreme Court and we discussed the Supreme Court’s decision in detail here. The following summary table comes from GAO’s November 13, 2017 Report to Congress (No. GAO-18-237SP) and organizes the statistics in a comparative manner to the prior four fiscal years:  A Federal fiscal year runs from October 1 of one year to September 20 of the following year SOME HIGHLIGHTS: A few numbers jump out:
- Over the past three years the number of bid protest filings were actually up between 3% and 6%, but in FY 2017 they were down 7% as compared to FY 2016;
- Likewise, the number of cases closed were down;
- Importantly, the number of cases that went to a merit decision (e.g., a final decision) were down significantly compared to last year and the number of “Sustains” -- where the GAO upheld and granted the protest is similarly down as compared to the prior year -- but up as compared to the preceding three fiscal years; and
- ADR was relatively successful in the 81 cases that used it, but overall the 17% sustain rate appears to be returning to the trend we have seen (excepting FY2016) of GAO denying more and more protests.
- Unreasonable Technical Evaluation;
- Unreasonable Past Performance and/or Unreasonable Cost/Price Evaluation; and
- Inadequate Record and Flawed Selection Decision.
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