A common occurrence in Government Accountability Office (GAO) bid-protest practice is for the procuring agency to announce it will take corrective action in response to a complaint against the award and the agency requests that GAO dismiss the protest as academic. The question that often arises in a followup protest after the dismissal is whether the agency’s corrective agency was a meaningful response in light of the protester’s earlier allegations of prejudicial error. When an agency fails to implement the promised corrective action, the agency’s action can be protested when it precludes the timely, economical resolution of the initial protest. The GAO considered such a followup protest in DirectViz Solutions, LLC, Comp. Gen. Dec. B-417565.3, 2019 CPD ¶ 372.
Protesters will not be excused from abiding by the bid protest regulations of the Government Accountability Office (GAO) because of their inexperience with protests or their lack of understanding of the GAO protest procedures. Thus, the GAO’s bid protest regulations contain some pitfalls for protesters unfamiliar with the rules on responding to the agency report.
In BNL, Inc., B-409450, B-409450.3, 2014 CPD ¶ 138, 2014 WL 1818046, the protester in a procurement for management, acquisition, and financial support to the Department of Veterans Affairs (VA) argued that the agency improperly evaluated the proposal of Strategy and Management Services, Inc. (SAMS), one of three awardees.
During the performance of a contract, unanticipated circumstances can arise which increase a contractor’s costs. Sometimes, the contract allocates the risk of the unexpected event as, for example, when a contract provides that the agency will bear the risk if a contractor encounters a differing site condition that increases the contractor’s costs. In other circumstances, a principle of common law establishes which party will bear the risk of an unexpected occurrence. For example, case law provides that an agency’s failure to disclose facts to a contractor can, in some circumstances, result in the agency’s bearing the risk of unanticipated performance difficulties that increase the contractor’s costs.
In Safeguard Base Operations, LLC v. United States, 2019 WL 3789887 (July 2, 2019), a protest to the U.S. Court of Federal Claims (COFC), the procurement was for dormitory services for the Federal Law Enforcement Training Center, U.S. Department of Homeland Security. The agency rejected an initial proposal because the submitter (and eventual protestor) failed to include in its price proposal several government-supplied “plug numbers”—i.e., pre-priced items for two contract line items (CLINs) X007AA and X007AB from the solicitation schedule.