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Procuring agency’s corrective action may turn a bid protest into “academic exercise”

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.

Procuring agency takes corrective action in response to bid protest

In DirectViz, the Defense Information Systems Agency (DISA) made an award to AMAR Health IT, LLC (AHIT). DirectViz Solutions (DVS) protested the decision to the GAO. In considering the protest, DISA indicated it would take corrective action to reevaluate the proposals and make a new source-selection decision or reopen discussions if necessary. The comptroller general dismissed the original protest as academic.

Followup protest asserts procuring agency did not take meaningful corrective action

In performing the re-evaluation, the agency reviewed—and reconfirmed—its original source-selection decision and its rationale. Because the evaluation record contained no evidence on how the agency reevaluated proposals or addressed DVS’ previous issues, DVS (in a followup GAO protest) asserted DISA did not implement a meaningful corrective action.

GAO’s findings

The comptroller general found that although the reevaluation reached the same conclusion as the prior evaluation, the agency better documented its comparison between AHIT’s and the next highest rated offeror’s proposal. Even though DISA’s reevaluation may have reached the same conclusions on the merit of the DVS proposal, GAO concluded those facts did not mean the agency had failed to take meaningful corrective action. Instead, the GAO found that DISA reviewed the DVS proposal and determined that it met the requirements of the request for proposals (RFP), demonstrated an adequate approach, and had a low risk of unsuccessful performance. Accordingly, the GAO denied the followup protest under the theory that an offeror’s disagreement with an agency evaluation, without more, does not demonstrate that the evaluation was unreasonable.

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© 2019

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