GAO – Challenging Agency Corrective Action Protest

Taking corrective action for purposes of an agency protest, means that the Agency has chosen to re-evaluate proposals, re-enter discussions, or some other aspect of the source selection process.  Bidders are not always happy with the actual agency corrective action. However, the question becomes what legal avenues are available to the challenge it.

Taking Corrective Action – The Rule

As a general rule, in negotiated procurements, federal contracting officers have broad discretion when taking corrective action where the agency determines that such action is necessary to ensure a fair and impartial competition. 

When challenging the government’s corrective action in a bid protest, one must understand that the government also has discretion in the area of corrective action when deciding the scope of proposal revisions.

• There are circumstances where an agency may reasonably decide to limit revisions that offerors make to their proposals. 
• Sometimes, taking corrective action could mean only having bidders in the competitive range subject to re-evaluation.

Tip: As a practical matter, you may want to watch for agency arguments that the amendment merely clarified the requirements.

Procedural Considerations

When you file your protest, a fast way for the Agency to remove the case from GAO’s jurisdiction is taking corrective action.  

• GAO will then dismiss the case as academic.  
• This may, or may not help your situation as the unsuccessful bidder.  

Oftentimes, government contractors will later find out that the corrective action did not address the original bid protest allegations. When there are multiple protests, and the Agency elects to take corrective action, contractors should keep watch for the underlying agency’s subsequent decision.

• Oftentimes, another protestor’s allegations may force corrective action.
• Watching to see if the agency actually addresses your original concerns is essential.

Is the Agency Taking Corrective Action Legally Sufficient?

As a reminder, the Agency taking corrective action only has to be reasonable.  Insufficient agency actions can be present if the Agency ultimately still impacts your ability to compete on fair and equal footing.

The focus is now what the agency does afterwards. Many government contractors relax their position when they see agencies taking corrective action because they may not be familiar with relevant bid protest law.

• If the contracting agency takes an action that is not favorable to you, then you have to file a new protest.
• You should not ask to reopen the old case. Instead, you have to file a new protest action.

Although the agency has broad discretion when taking corrective action, such discretion does not go unchecked. Especially when there were material changes to the solicitation requirement.

• If the agency’s corrective action materially changes the terms of the solicitation, you should be given consideration to readjust your proposal.
• When it comes to analyzing corrective actions in a GAO agency protest, the general rule is that offerors should be permitted to revise all aspects of their proposal, absent a reasonable basis proffered by the agency for limiting revisions.

After The Agency Takes Corrective Action, When Does GAO Step In? When challenging government’s  action in a GAO agency protest, GAO will not question an agency’s decision to restrict proposal revisions when it takes corrective action so long as it is reasonable in nature and it remedies the established or suspected procurement impropriety.

Is the solicitation change material? When challenging the agency’s corrective action,  materiality is an essential piece of your legal position. One key indicator is to see whether an agency amendment changes the previous source selection evaluation criteria.

GAO has ruled that the  FAR instructs that when an agency issues a new solicitation in response to a protest, the agency should provide to offerors in the competitive range from whom revised proposals are sought any  “[i]nformation provided to unsuccessful offerors in any debriefings conducted on the original award regarding the successful offeror’s proposal.” FAR sect. 15.507(b)(2), (c)(1).

Tip: When challenging the government’s corrective action in a bid protest, you should always make it clear that you would have revised your proposal if given the opportunity.

Tip: When attacking agency corrective action, your bid protest lawyer should show why the corrective action is unreasonable and does not remedy a specific procurement impropriety.

GAO  has ruled it be fundamental that where an agency materially changes the solicitation’s evaluation scheme, offerors must be given a reasonable opportunity to respond to the revised scheme; otherwise, the statutory requirement to notify offerors of the criteria upon which their offers will be evaluated is meaningless.

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