When reviewing your case for challenging a bid protest and agency corrective action, you must first understand that in a GAO bid protest, contracting officers in negotiated procurements have broad discretion to take corrective action. The underlying basis for taking such action should be necessity ensure a fair and impartial competition.
After getting notice from a government contracting office, the details of agency corrective action are within the sound discretion and judgment of that agency. However, it should not be so vague that no one understands the basis for such corrective action.
GAO generally will not object to the specific agency corrective action in a bid protest, so long as it is appropriate to remedy the concern that caused the agency to take corrective action. Typically, GAO would raise concerns about a bid protest. Then, the contracting agency sometimes would make a decision whether or not to litigate the bid protest until GAO rules on the case.
GAO Objecting to Bid Protest Corrective Action by Agency
There are limited exceptions under which GAO will object to agency corrective action in a bid protest.
- If the record establishes either that there was no impropriety in the original evaluation and award decision, or
- Where there was an actual impropriety, but it was not prejudicial to any of the offerors.
- Protest must show that the agency’s actions are contrary to procurement law or regulation, or otherwise are improper.
- The proposed corrective action is overly broad.
What Happens When there are Multiple Bid Protests?
Sometimes there are several bid protests filed at the same time. The agency may choose to take corrective action based on one of the protest but still tries to dismiss all protests as “academic.”
Should GAO allowed this? The reality is that the Agency very well understands that its decision to take corrective action procedurally gets rid of GAO’s jurisdiction to hear the protest. However, bid protest lawyers should always make some level of analysis to see if the agency decision to take corrective action actually addresses your concerns.
GAO will more than likely decide that your challenge to the corrective action is “premature.” Sometimes that may be true. However, you should always consider raising your objection on the record.
Bid Protest Corrective Actions to Watch Out For
When a government contracting agency takes corrective action in a GAO bid protest, and it fails to implement corrective action in response to an earlier bid protest filed with the Government Accountability Office, your bid protest could potentially be sustained if the record shows that the agency failed to implement the corrective action it proposed to take in response to clearly meritorious issues raised in the original protest. As a protester, you should not be put to the expense of protesting a second time on the same ground.
As stated earlier, a bid protest challenging agency corrective action can be very tricky. GAO simply looks to see if the agency acted reasonably. This is a very low standard. Even after you receive a notice of award, still request a debriefing. Otherwise, you subsequent bid protest may be even more difficult.
For addition assistance with bid protests challenging agency corrective action, call our lawyers at 1-866-601-5518.