Hope Is Not a Strategy: Protest Shortcomings of Corrective Action as Soon as You See Them
When an agency announces its intent to take corrective action in response to a protest, it’s easy for the protester to feel that it has “won”—and to some extent it has. At the very least, its protest has prompted the agency to regroup and remedy one or more perceived problems with the subject procurement. Despite that, the agency’s notice of corrective action does not mean that the protester can sit back and rest on its laurels, or simply hope that the agency’s corrective action will fix the procurement problems identified in its protest. As reiterated in the recent Government Accountability Office (GAO) decision in CPS Professional Services, LLC d/b/a CATHEXIS, B-417928.2 (February 5, 2020), a “successful” protester must carefully—and immediately—analyze the agency’s intended corrective action and challenge any shortcomings it finds. Simply waiting to see what comes from the corrective action is not a viable option.
The underlying protest involved the issuance by the Department of Veterans Affairs (VA) of a task order for program and program management support services. The protester, CATHEXIS, challenged the agency’s award decision to Enterprise Resource Performance, Inc. (ERPi), arguing that, among other things, the VA had failed to evaluate the basis of estimate (BOE) CATHEXIS submitted as part of its proposal in accordance with the agency’s commitment to such an evaluation. CATHEXIS sought to have the Agency “terminate the award to ERPi and (1) award a task order to CATHEXIS as the best value offeror; (2) reevaluate the proposals in accordance with the stated criteria and make a new award determination; or (3) accept proposal revisions, conduct new evaluations correcting the errors described above, perform a new best value analysis, and award a new task order in accordance with the evaluation criteria set forth in the [solicitation].”
In response, the VA sought dismissal of the protest based on its notice of intent to take corrective action. The GAO then dismissed the protest as academic.
On its face, however, the agency’s announced corrective action did not give CATHEXIS everything it sought. More particularly, the VA’s intended corrective action entailed only a re-evaluation of proposals and a new best value determination based on that re-evaluation. It did not provide for the submission or evaluation of revised proposals, the third aspect of the relief CATHEXIS sought in its protest.
Despite this, CATHEXIS decided not to immediately protest the inadequate scope of the announced corrective action. Instead, it waited to do so until after the VA had completed that corrective action (without providing offerors the opportunity to submit revised proposals)—and only then argued that the corrective action did not address the prior errors in the procurement because it did not allow for the submission of revised proposals. The GAO explained that “CATHEXIS nevertheless hoped the corrective action would allow for revised proposals, in order to implement further revisions beyond those contained in its basis of estimate.”
As the GAO pointed out however, just as protests based on alleged solicitation improprieties that are apparent prior to the deadline for submitting proposals must be filed before that deadline, protests challenging the agency’s announced ground rules for performing corrective action and recompetition also must be filed prior to the deadline for submitting revised proposals. More importantly, the GAO went on to note that, “[w]here, as here, no further submissions are anticipated, such challenges must be raised within 10 days of when the scope of the agency’s corrective action was known or should have been known.” In this regard, the GAO rejected outright CATHEXIS’ assertion that it “had no reason to believe the VA’s proposed corrective action would fail to address the primary aspect of its [protest] until after the VA issued an award to ERPi without requesting proposal revisions.” According to the GAO, CATHEXIS knew that the VA did not intend to request revised proposals as soon as it received the notice of corrective action, so it should have protested that scope within 10 days. Because CATHEXIS failed to do so, its protest was dismissed as untimely.
There certainly can be—and often are—corrective action circumstances that give rise to much more complicated questions about what the protester knows or should know about the agency’s intent and how the corrective action will actually play out. But this decision underscores the importance of taking time as soon as the notice of corrective action is received to review what the agency says about its intended corrective action and analyzing whether and to what extent that plan addresses the protest grounds to which it purportedly responds. If you feel that the stated corrective action is inadequate, protest within 10 days. Whatever you do, don’t sit back and hope everything will work out fine then try to protest if it doesn’t.
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