February 17, 2020

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Government Accountability Office Protest Sustain Rate on the Rise

Through the first 5 months of FY 2016, GAO is sustaining protests at a 22% clip — a far higher rate than in recent years.

GAO’s sustain rate considers only those protests that go to a decision on the merits, and reflects the percentage of those protests where GAO finds in favor of the protester. In recent years, GAO’s sustain rate has generally declined.

But in the same period, protesters’ overall rate of success at GAO has remained quite high. GAO’s “effectiveness rate” — the percentage of protests where the protester obtains relief through either a favorable GAO decision or voluntary agency corrective action — has remained above 40% for nearly a decade. Last year, it was 45%.

Government Accountability Office Protest Sustain Rate on the Rise

That the effectiveness rate has remained high even while the sustain rate has dropped, suggests that agencies have been doing a better job of identifying when there’s a procurement error that needs to be fixed, and have been taking corrective action before GAO ever has to decide the issue on the merits.

But in the first part of FY 2016, the sustain rate has jumped. As of February 26, 2016, GAO had published 152 decisions with a date of October 1, 2015 or later. Our analysis of those decisions indicates that the GAO sustain rate thus far in FY 2016 is 22.3% — nearly double the rate from last year.

This percentage is based on GAO’s counting methodology, which tracks the outcome of each protest claim assigned a separate “B-number.” Our analysis indicates that of the 152 decisions since October 1, 2015, the B-number breakdown is as follows:

Government Accountability Office Protest Sustain Rate on the Rise

It’s not yet clear whether the increase in sustains is also driving the effectiveness rate higher, or whether agencies are taking corrective action less often (so that a greater number of valid protests are reaching a decision by GAO). Either way, it seems that this year protesters are more likely to win a protest that is fought to its conclusion at GAO.

© 2020 Covington & Burling LLP


About this Author

Jason A. "Jay" Carey, Covington Burling, Government Contracts Attorney,

Jason Carey represents clients in litigation with the government and other private parties, counsels clients regarding a wide range of formation and compliance matters, and defends clients under investigation by federal and state governments. Mr. Carey regularly represents government contractors in bid protests before the U.S. Government Accountability Office and the Court of Federal Claims. He has prosecuted and defended more than 80 protests covering a wide range of procurements, such as:

  • aerospace and defense (including an $11B launch services contract);
  • ...
202 662 5186
Luke Meier, Government Contract Attorney, Covington Law Firm
Special Counsel

Luke Meier is special counsel in the firm’s Government Contracts Practice Group. He represents and advises clients in all aspects of government contract law, and has experience with a wide variety of matters including contract disputes and claims, bid protests, domestic sourcing requirements, ethics policies and training, internal investigations, and fraud disclosures.

Mr. Meier’s litigation experience includes complex commercial disputes in federal courts and numerous bid protest actions before the Government Accountability Office and United States Court of Federal Claims covering a wide range of procurements, such as:

  • aerospace and defense (including a $500M helicopter services contract);
  • biotechnology (including a $500M biodefense contract);
  • healthcare (including a $23B TRICARE contract); and
  • information technology (including a $600M cloud services contract).
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