CIO-SP4 drives 22% surge in bid protests filed in fiscal year 2023, according to GAO

Challenges to a $50 billion government-wide IT contracting vehicle, CIO-SP4, contributed to a 22% increase in bid protests handled by the Government Accountability Office, according to numbers the agency submitted to Congress.

In a Thursday letter to lawmakers, the GAO disclosed that it received 2,025 cases in fiscal year 2023, 367 more than the previous fiscal year. It noted that the 2023 numbers included its “resolution of an unusually high number of protests challenging” the solicitation by the Department of Health and Human Services’ National Institutes of Health.

The surge in cases filed comes after at least four years of declines.

CIO-SP4, which stands for Chief Information Officer-Solutions and Partners 4, is the fourth iteration of a government-wide IT services and product contract. 

It has faced multiple challenges from companies seeking to be included in it since the NIH Information Technology Acquisition and Assessment Center (NITAAC) first requested proposals in May 2021. Earlier this year, NITAAC said it would again take corrective action after the GAO sustained dozens of bid protests related to the solicitation.

The CIO-SP4 protests had a “significant impact” on the overall filings, Kenneth Patton, managing associate general counsel for procurement law in GAO’s Office of the General Counsel, said in an interview. 

Even without the contract, however, protests would have likely seen a slight bump. If CIO-SP4 were removed from the total, the increase would have been roughly 3%, Patton said.

Patton also pointed to a year-over-year increase in the number of bid protests that were related to task and delivery order protests, which GAO has jurisdiction over. There were 368 in fiscal 2023, compared to 344 in fiscal 2022.

If agencies continue using multiple award indefinite delivery, indefinite quality (IDIQ) contracts with large dollar amounts, such as CIO-SP4, Patton said it’s likely that number has the potential to increase. 

“Once you get into one of these contracts, there aren’t many avenues for you to challenge the award of a task or delivery,” Patton said. “The only place you can go is GAO once you meet certain dollar thresholds.”

Jay Carey, a partner at Covington & Burling who focuses on bid protests, highlighted the 57% effectiveness rate — or number of challenges in which the protester successfully received some form of relief — in the 2023 numbers, which is the highest in at least five fiscal years.

The number might have also seen an increase from the CIO-SP4 activity, Carey said. But even if that one procurement is accounted for, it would likely still be in line with where it’s been for the past few years at 50%.

“I think the fact that protesters are successful in about 50% of all protests undercuts the idea that there are a lot of frivolous protests,” Carey said.