Understand GAO’s Analysis in a Government Protest and Getting Agency Corrective Action Cost
An issue arises in a government contract protest where the agency elects to take corrective action, and when, if ever, can a protestor recover costs when the agency takes too long to take corrective action.
Many contractors have made mistakes when trying to get their protest cost.
Agency Delay Requirement: Generally in a government protest, GAO may elect to reimburse protest cost, when the agency unduly delays taking corrective action in the face of a clearly meritorious protest.
More specifically, if contractors file a government contract protest, if the agency takes corrective action on or before the due date of its protest report, then the protestor’s chance of recovering costs is slim.
Clearly Meritorious Requirement: Alternatively, if the agency waits until after the due date of its protest report to take corrective action, you are in a better position to ask GAO for cost.
However, companies must still be careful because GAO’s precedent still requires some analysis of the government protest in question was clearly meritorious.
It appears that the rule is still in favor of no cost recovery. This simply because the standard for determining whether there was a clearly meritorious government contract protest still lies in GAO’s discretion.
Under the rules for agencies taking corrective action in a government protest, there is no provision for deciding whether a protest was “clearly meritorious”.
Request for cost, there is still the window for someone to determine that the allegation was “not clearly meritorious.” The Agency will certainly oppose the fact that your government protest had no merit to it.
Many agencies use the decision to take corrective action but sometimes do so after the protestor has spent significant amounts litigating the protest.
Therefore, although the emphasis is the submission date of the agency report, there is still no guaranty of costs given the “clearly meritorious protest” requirement.
If you are involved in a government protest where the agency delays its corrective action decision, please call our GAO protest lawyers at 1-866-601-5518.