When bid protests are filed, government contracting agencies may see merit to your case. As a result, they may decide to take corrective action. The problem usually arises when federal agency corrective action is taken but you believe that such action was not appropriate. Should you file a protest? It depends.
Lately GAO takes a more serious look at agency corrective action. You rights to file a new protest are still in place. However, you must make more than a general allegation that the corrective action is not enough. A few things to look at include:
- Did the agency make a material change to the solicitation requirements?
- If you filed an original GAO protest, did the agency corrective action address your initial protest allegations?
- Although the agency corrective action may appear to be unreasonable, are you prejudiced?
Procedural Impact When There is Agency Corrective Action
As a practical matter, when an agency decides to take corrective action, it will notify the protestor and GAO of its intentions. This takes away jurisdiction from GAO to hear the case on the merits. Therefore, GAO will dismiss the protest as academic.
Agency Corrective Action that Materially Changes the Requirements
When considering the effect of a government contracting agency corrective action, you must look for a material change in the requirements. In other words, you may want to look at whether the correction would impact how you would have to respond to the solicitation.
An example would be an agency corrective action that changes the weight on non-priced factors. You also have to assert that if allowed, you would have amended your proposal.
The general rule from GAO is that when the agency corrective action amends a solicitation and permits offerors to revise their proposals, you should be permitted to revise any aspect of your proposals–including those that were not the subject of the amendment–unless the agency shows that the amendment could not reasonably have an effect on other aspects of the proposals, or that allowing such revisions would have a detrimental impact on the competitive process. See Cooperative Muratori Riuniti, B-294980.5, July 27, 2005, 2005; Lockheed Martin Sys. Integration-Owego; Sikorsky Aircraft Co., B-299145.5, B-299145.6, Aug. 30, 2007, 2007. See information about the arbitrary and capricious standard.
Agency Corrective Action Allows for Broad Discretion
In negotiated procurements, contracting agencies have broad discretion to take agency corrective action where such action is necessary to ensure a fair and impartial competition. Intermarkets Global, B-400660.10, B-400660.11, Feb. 2, 2011, 2011. An agency’s discretion to take corrective action extends to deciding the scope of proposal revisions, and there are circumstances where an agency may reasonably decide to limit revisions offerors make to their proposals. See, e.g., Computer Assocs. Int’l, Inc., B-292077.2, Sept. 4, 2003, 2003 CPD para. 157 at 5.
Although challenging agency corrective action could mean more legal costs, it might be worth looking at what the agency actually did. If there are material changes to requirements you could have a strong shot at prevailing in a GAO protest. See information about filing agency bid protests.
For more information or help with challenging agency corrective action, call our GAO protest lawyers at 1-866-601-5518.