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.

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Photo of Peter Terenzio Peter Terenzio

Peter Terenzio routinely advises clients regarding the multiple regulatory regimes that apply to federal contractors. His practice also extends outside of traditional government procurement contracts to include federal grants and Other Transaction Authority (OTA) research, prototype, and production agreements.

Among other things, Peter…

Peter Terenzio routinely advises clients regarding the multiple regulatory regimes that apply to federal contractors. His practice also extends outside of traditional government procurement contracts to include federal grants and Other Transaction Authority (OTA) research, prototype, and production agreements.

Among other things, Peter regularly helps clients with the constantly evolving domestic-preference requirements promulgated pursuant to various federal laws, including, for example, the Buy American Act (BAA) and Trade Agreements Act (TAA), but also including more recently the Inflation Reduction Act (IRA) and Infrastructure Investment and Jobs Act (IIJA). He also has particular experience with helping clients navigate the complicated prevailing wage rules imposed by the Davis Bacon Act (DBA) and Service Contact Act (SCA). Peter has used this regulatory knowledge to help clients negotiate the specifics of their contracts, grants, and OTA agreements.

Peter also has significant experience with the disputes that may arise during the execution of government prime contracts. He knows how to work closely with the client’s subject matter experts to prepare and submit detailed requests for equitable adjustment (REAs) in order to secure much-needed price or schedule relief. Where necessary, he has assisted clients with converting their REAs into certified claims, and when disputes cannot be resolved at the Contracting Officer level, he has helped clients vindicate their contractual rights in litigation before the Boards of Contract Appeals.

Photo of Kayleigh Scalzo Kayleigh Scalzo

Ranked by Chambers USA among government contracts practitioners, Kayleigh Scalzo represents government contractors in bid protests and other high-stakes litigation matters with the government and other private parties. She has litigated bid protests in a wide variety of forums, including the Government Accountability…

Ranked by Chambers USA among government contracts practitioners, Kayleigh Scalzo represents government contractors in bid protests and other high-stakes litigation matters with the government and other private parties. She has litigated bid protests in a wide variety of forums, including the Government Accountability Office, U.S. Court of Federal Claims, U.S. Court of Appeals for the Federal Circuit, FAA Office of Dispute Resolution for Acquisition, federal and state agencies, and state courts.

Kayleigh a co-chair of the American Bar Association Public Contract Law Section’s Bid Protest Committee. She is also a frequent speaker on bid protest issues.

Kayleigh maintains an active pro bono practice focused on immigration issues and gender rights.