Elizabeth N Jochum is an Associate in our Tysons office.
Protesters remained active and fairly successful in their challenges to agencies' procurement actions at the Government Accountability Office (GAO) in 2018, while protests at the Court of Federal Claims spiked.
According to Ralph White, Managing Associate General Counsel for Procurement Law at GAO, presenting at West's Government Contracts Year In Review Conference, the number of protests at GAO held steady, despite the mid-year implementation of a $350 filing fee. A previous blog post with GAO statistics can be found here. White credited a number of competing factors with the steady numbers. The filing fee, enhanced Defense Department debriefings and the suspension of one particularly active "nuisance protester" likely worked to reduce the number of protests, while the highly competitive procurement environment, increased DoD spending, an increase in the dollar threshold for GAO's task order jurisdiction and the steady but significant success rate for protesters worked to increase the number of protests.
That success rate - the number of protests where the protester sees some kind of remedy, whether from a sustain decision or agency corrective action - remains around 44 percent, similar to previous years, White said. For the third consecutive year, not a single agency refused to follow a recommendation issued by GAO.
The Court of Federal Claims saw a marked increase in protests in 2018 – 179, compared to 129 in 2017, a 40 percent increase. Judge Thomas Wheeler said some – but not all – of this increase is attributable to an ongoing challenge to the Department of Education's student loan servicing program that has had multiple iterations and involves 8-12 protesters each time. With the increased number of protests, which Judge Wheeler said may be the "new normal," and a few vacancies on the court, each judge is seeing 12-15 protests a year.
About half of the court's protests start at GAO, but not all reached a decision or other final resolution at GAO, Judge Wheeler said. For example, some protests will move to the court as a result of a dispute about document production.
The year-in-review presentation also covered key cases form GAO, the Court of Federal Claims and the U.S Court of Appeals for the Federal Circuit. These key cases will be discussed in an upcoming blog post. Stay tuned.
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