GAO Clarifies Timing for Corrective Action Protest

By Peter Terenzio & Kayleigh Scalzo on July 8, 2020

Posted in Competition, Government Contracts, Uncategorized

Although it is usually good news for a protester when an agency takes corrective action, the corrective action sometimes fails to adequately address the protest grounds. When this occurs, a protester may wish to file a new protest challenging the agency’s corrective action. The question of when to file a corrective action challenge is often tricky, however — and a misstep can result in dismissal. GAO recently clarified that timing in Computer World Services Corporation.

In that case, the protester (“CWS”) had successfully protested the award of a task order under an RFQ issued by the Coast Guard. GAO found, among other things, that the Coast Guard had failed to properly conduct a price realism analysis.

On March 17, 2020, following CWS’s successful protest, the Coast Guard sent an email to the offerors that outlined its intended corrective action. The email stated that the agency would no longer be considering price realism as part of the price evaluation. The email also stated that “[a]n amendment will not be issued reflecting this change; this email serves as the official notification” (emphasis in original).

The offerors were not permitted to submit revised proposals, and instead were required to either “revalidate” their earlier price quotes or withdraw their proposals. Offerors had to respond (i.e., either revalidate or withdraw) by noon on March 19 — two days after the Coast Guard’s email.

CWS filed a protest challenging the agency’s corrective action on March 27 — ten days after the Coast Guard’s email.[1] The intervenor requested that the protest be dismissed as untimely. According to the intervenor, CWS was obligated to file its protest by noon on March 19 — the deadline to revalidate or withdraw proposals.

GAO found CWS’s protest to be timely. GAO relied on 4 C.F.R. § 21.2(a)(1), which states, in pertinent part:

“In procurements where proposals are requested, alleged improprieties which do not exist in the initial solicitation but which are subsequently incorporated into the solicitation must be protested not later than the next closing time for receipt of proposals following the incorporation.”
“If no closing time has been established, or if no further submissions are anticipated, any alleged solicitation improprieties must be protested within 10 days of when the alleged impropriety was known or should have been known.”

Because the agency had neither amended the solicitation nor established a “closing time for receipt of proposals” (i.e., under the first bullet), CWS timely filed its protest “within 10 days of when the alleged impropriety was known or should have been known” (i.e., under the second bullet). The intervenor argued that the deadline to revalidate or withdraw proposals was the equivalent of a “closing time for receipt of proposals,” but GAO disagreed, explaining that there had been no opportunity for “further submissions.”

Questions of protest timing are often tricky — and they are particularly tricky in challenges to an agency’s corrective action. This clarification will be useful in future protests.

[1] CWS argued that the agency needed to issue a solicitation amendment and give offerors an opportunity to submit revised proposals if it wished to remove the price realism evaluation. GAO agreed.