Government Contracts Monitor

Constant Corrective Action Crushing or Compensating Contractors?

July 27, 2015

The Government Accountability Office (GAO) bid protest docket tells a story that is hard to ignore: the remarkably high number of protests in which the agency takes corrective action – at least 40% -- suggests the federal procurement system is not working. “Corrective action” is the term for an agency’s voluntary decision to reexamine or re-conduct some or all aspects of a procurement, typically within 30 days of the filing of the protest (before the agency is required to provide its report and thus, before GAO has given any indication of how it might rule). For a protester this means that your chances of obtaining relief in the form of agency corrective action are 13 times greater than the likelihood your protest will be sustained if you proceed all the way through the process to a decision on the merits by the GAO. And that’s not all. Unofficial statistics suggest a 20% likelihood of the corrective action resulting in the protester getting the contract.

“Corrective action” is where an agency admits it made a mistake in its procurement, evaluation and/or award process – a mistake that was significant enough to prevent the agency from attempting to defend its award decision. These missteps are not necessarily the ones identified by the protester in its protest. They can be anything that the agency, upon review of its record, determines was done improperly. In this regard it is important to remember that when a protest is filed it is often given to agency counsel who are experienced in these matters but have not been involved in the procurement to date. This means there is a fresh and critical set of eyes looking to see if there was a misstep by the evaluators. These eyes conclude, in almost half the protests filed, that there were mistakes. The bottom line? The large number of protests that end up in agency corrective action strongly suggests the federal procurement system is not working.

What does a contractor do if it wins the award, a competitor protests to the GAO, the agency determines to take "corrective action" and GAO dismisses the protest as moot? This is happening over and over again, much to the dismay of awardees. What can these awardees do? They can take their complaints to the Court of Federal Claims (COFC) or back to the GAO.

The entire process is frustrating and expensive for everyone involved. The better course would be for agencies to have experienced counsel participate in the procurement process up to and including the evaluation and award to eliminate many if not all of the considerable mistakes now being discovered after the fact – in response to a protest. In addition, where despite legal assistance on the procurement team corrective action is nonetheless required, it would be far better for agencies to state exactly what they intend to do and then to undertake those steps quickly and with sufficient transparency to reduce the need for offerors to file additional protests in order to make certain the government is proceeding properly.

Attorneys

Lindsay Simmons