As the old adage goes, you can’t unring a bell.  But GAO recently concluded that it was rational of an agency to do just that when taking corrective action in a bid protest.

In Quotient, Inc., B-416473.4, Mar. 12, 2019, 2019 CPD ¶ 106, the Department of Education (“ED”) established a competitive range and then asked vendors technical questions about their quotations for a Federal Supply Schedule (“FSS”) order.  Vendors responded and ultimately provided updated quotations.  After award, Quotient, Inc. (“Quotient”) filed a series of bid protests, which prompted ED to take an unusual step:  It announced that it would take corrective action by ignoring the vendors’ updated quotes and making a new award decision based solely on the original submissions.

Quotient protested the planned corrective action, this time arguing that ED had irrationally decided to ignore the revised quotations.  Id. at 5.  GAO agreed with the protester that the corrective action was a “quite uncommon” attempt to “unring a bell.”  Id. at 7.  However, GAO found ED’s plan unobjectionable, stating that it could rationally “exclude consideration of” the revised quotes under the circumstances.  Id.

GAO affords agencies broad discretion to take corrective action.  Still, given the seeming impossibility of “unseeing” a revised submission coupled with standard rules governing expiration of offers, it might be a long time before we encounter another decision like this one.  Indeed, several unique factors were at play in this procurement.

First, the procurement had been subject to multiple prior protests, including an earlier claim by Quotient that the technical evaluation panel — which had conducted the questioning — was biased.  A claim of bias can be difficult to remedy through corrective action.  The agency apparently concluded that the revised quotations were infected by the potentially biased questions, and so it constituted a new technical evaluation panel to review the original quotes without exposure to the problematic discussions.  Id.  Apparently because the agency had siloed the new evaluation panel, GAO concluded this was “a reasonable means of remedying a reasonable concern[.]”  Id.

Second, this was an FSS procurement, meaning that the updated quotations were not binding “offers” under FAR Part 15.  In FSS procurements, which are governed by FAR Subpart 8.4, vendors do not submit offers — they submit quotations, which are akin to a firm negotiating position.  Id. at 8.  Once an agency reviews a quotation, it has the power to make a contractual “offer,” which the contractor can accept or reject.  Id.

Although the protester argued that the vendors’ original quotations had been withdrawn and replaced with their updated quotations, GAO disagreed, finding that the original quotations were valid and that the agency could use them to make offers to the vendors.  Id.

Given the unusual facts of this case, it is unlikely that GAO’s decision will inspire agencies to regularly disregard revised submissions when taking corrective action in the future.  But interested contractors should stay tuned; on April 26, 2019 Quotient filed a new protest, and thus some of these facts may be at issue again.