The GAO Releases its FY23 Annual Bid Protest Report: A Short Analysis and an Approach to Mitigating Protest Risk?

The Report. GAO recently provided its Annual Report on Bid Protests to Congress last week and the numbers are up this year.  A major contributor to this increase is tied to the numerous sustained protests filed against the CIO-SP4 contract.  However, even accounting for the high number of protests filed against the CIO-SP4 GWAC, the report shows an uptick in the number of sustained protests.  This seems to be a good time to ask the question, “Is there anything we can do to help the acquisition community improve their contracting processes and potentially mitigate protest risk?”

The Protest Tool. As a Project Leader for The MITRE Corporation, we have partnered with the Office of the Director of National Intelligence (ODNI) to develop the Contract Protest Diagnostic Tool (CPDT) to help agencies avoid sustained bid protests (or being forced to take corrective action).  The tool is free and is designed to organize the many protest grounds and explain them in “plain English” for the federal acquisition workforce.  The tool also allows one-click access to the published decisions from GAO, COFC, and the CAFC.

The Analysis. After the GAO report was issued, we examined every sustained protest decision for Fiscal Year 2023.  Our review shows that most sustained protest grounds are already addressed in our protest tool.  These include, but are not limited to, protests that were sustained due to:

• Failing to follow the terms of the solicitation as applied to “self-scoring” (CPDT Subcategory 8.5).
• Awarding a task order that is outside the scope of an offeror’s GSA Federal Supply Schedule. (CPDT Subcategory 9.1).
• Failing to mitigate an Organizational Conflicts of Interest (CPDT Subcategory 7.2).
• Inserting terms into FAR Part 12 procurements that are inconsistent with “customary commercial practices.” (CPDT Subcategory 3.1).
• Failing to follow the evaluation factors set out in the solicitation strictly. (CPDT Subcategory 3.5).
• Improperly evaluating professional employee compensation plans under FAR Clause 52.222-46. (CPDT Subcategory 5.3).
• Evaluating proposals in a disparate manner. (CPDT Subcategory 3.5).
• Engaging in discussions that are not meaningful (CPDT Subcategory 4.2).
• Awarding a contract to an offeror that failed to meet a material requirement of the solicitation. (CPDT Subcategory 7.5).
• Performing an unreasonable past performance evaluation. (CPDT Subcategories 3.8).
• Drafting ambiguous solicitation terms. (CPDT Subcategory 2.3).
• Performing an improper price realism analysis (CPDT Subcategory 5.3).

Check out the CPDT. We continue to improve the Protest Tool every day and it can provide you with valuable protest information right now!  We are seeking feedback from the federal acquisition community on any aspect of our protest tool.  Check it out and let us know what you think. 

Access the CPDT for free here:  Contract Protest Diagnostic Tool (CPDT). 

Access the 3-Minute Intro Video here:  3-Min CPDT Intro Video

Please reach out to me if your agency would like a demo!