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By Nick Wakeman

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Nick Wakeman

Task order protests continue steady rise

The use of task order contracts have grown steadily over the last decade and if you doubt that just look at the growth of bid protests involving task orders.

In its annual bid protest report, the Government Accountability Office said it closed 417 protests involving task orders during fiscal year 2020, out of a total of 2,137 closed cases.

In fiscal 2010, there were 189 protests involving task orders, more than double over 10 years. The number of overall protests during that time hasn’t changed significantly with 2,226 protests in fiscal 2010.

GAO didn’t begin hearing task order protests until 2008, when Congress gave them jurisdiction. In fiscal 2008, GAO heard 87 protests. That number roughly doubled to 168 in fiscal 2009.

Here’s a breakdown of task order protests:

  • 2020 -- 417
  • 2019 -- 373
  • 2018 -- 356
  • 2017 -- 256
  • 2016 -- 375
  • 2015 -- 335
  • 2014 -- 292
  • 2013 -- 259
  • 2012 -- Not reported
  • 2011 -- 147
  • 2010 -- 189
  • 2009 -- 168
  • 2008 -- 87

I gathered these numbers by looking through the annual reports that GAO files with Congress.

Cases filed with GAO have dropped for nearly four years in a row. Fiscal 2020 was down 2 percent from fiscal 2019, which was down 16 percent from fiscal 2018.

Fiscal 2018 had a very slight increase of less than 1 percent from fiscal 2017, which had a 7 percent drop from fiscal 2016.

Fiscal 2016 at 6-percent growth comes at the tail end of several years of steady growth starting in fiscal 2007. Starting that year, there was a steady increase in the number of filings with GAO. Several years there was double digit growth, including 20 percent in fiscal 2009.

The only exception to 10 years of growth was fiscal 2013, which saw a 2 percent decrease in filings at GAO.

GAO also tracks both the sustain rate -- the percentage of cases where GAO rules in favor of the protester -- and what GAO calls the effectiveness rate. GAO defines effectiveness rate as the percentage of protesters who get some sort of relief from the agency. This includes decisions sustaining the protest but also when the agency takes a corrective action.

But I have to note that a corrective action doesn’t automatically translate into a contract win for the protester. Generally, it is just a second shot at the contract.

For fiscal 2020, the sustain rate was 15 percent, up from 13 percent the year before.

The effectiveness rate was 51 percent, up from 44 percent the year before. This is the first time the effectiveness rate has been over 50 percent since GAO first reported the rate in fiscal 2001.

Each year, GAO reports the most common reasons protests are sustained. There are few surprises here. The top reason is an unreasonable technical evaluation, followed by a flawed solicitation. Unreasonable cost or price evaluation was the third most common reason, and unreasonable past performance evaluation was fourth.

Footnotes in GAO decisions always hold some interesting tidbits and this report is no different. For each of the most common reasons for a sustained protest, GAO footnoted an example of a decision from the past year. Those are worth a read.

It seems that protests have cooled down since their peak several years ago. Why that is, I’m not sure. Perhaps agencies have gotten better at designing their solicitations as well as how they conduct their debriefings. Many companies have told us that poor debriefings are a reason they file protests – they want to learn more about why they lost.

But whether they are up or down, protests remain a useful tool for companies as they compete for contracts and task orders and that is very unlikely to change in the future.

Posted by Nick Wakeman on Jan 03, 2021 at 12:44 PM

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