Often, government contracting agencies take corrective action when contractors file a GAO protest. Taking corrective action mainly takes away jurisdiction from the court to hear the case.
A recent GAO protest case illustrates mistakes made in a GAO protest for corrective action. In that bid protest, the protestor argued that after the agency experienced a series of GAO protests, it had unreasonably delayed implementing corrective action.
The protestor argued that by delaying its corrective action that it lost almost the entire base year of contract performance. It also claimed that by delaying the corrective action, the agency harmed its ability to obtain work. GAO did not buy this argument.
The agency opposed the argument by filing a motion to dismiss and by suggesting that the protestor did not suffer any prejudice by the amount of time that has elapsed since the agency proposed taking corrective action.
No Legal or Factual Basis for GAO Protest
In deciding the protest, GAO cited the Competition in Contracting Act of 1984 (CICA), 31 USC 3551-3556 and 4 CFR 21.1(c)(4) and (f) as its jurisdictional grounds. GAO found that the protestor’s argument that the agency delayed taking corrective action did not include a detailed statement of the factual and legal grounds for the protest. The corrective action argument was not legally sufficient.
Corrective Action Argument – No Violation of Procurement Law
GAO also found that the protestor’s corrective action case provided no evidence of a violation of procurement law. For example, if the agency stated that it would have completed the corrective action sometime in the past, then GAO seems to indicate that there would have been a better argument.
- Bid protests must demonstrate some level of violation or procurement law.
- A GAO protest must also show evidence of unreasonable agency action
- A bid protest must also show prejudice
- Bad Faith Requirement
To show bad faith by a government contracting agency, you must show evidence that the contracting officer directed actions with specific and malicious intent to injure the protester. This is difficult to prove. To illustrate an example of bad faith when taking corrective action, GAO cited Envirosolve LLC, B‑294974.4, June 8, 2005, 2005 CPD ¶ 106 at 7‑9 (sustaining protest where record shows that agency failed to implement corrective action proposed in response to earlier protest, and instead issued noncompetitive purchase orders with additional contract requirements to select vendors based upon the personal preference of local agency personnel).
The takeaway from this case is that government contracting agencies have the ability to take corrective action. When challenging delays in taking corrective action, you must show some level of evidence where the agency acted unreasonably. For example, if the organization simply went another route and failed to take corrective action in the instant procurement, then there may be a meritorious argument. See also arbitrary and capricious definition.
For help avoiding mistakes in a GAO protest that challenges an agency taking corrective action, call our bid protest lawyers at 1-866-601-5518.