OUTCOME: Agency did not unduly delay corrective action when it changed the evaluation criteria in question prior to the deadline for submitting its agency report to GAO. As a result, GAO deemed the action by the agency to be sufficiently prompt such that the contractor was not entitled to reimbursement of its protest costs.
FACTS: A1C Partners, LLC, (A1C), A1C, a veteran-owned small business, requested GAO to recommend that the Department of Homeland Security (DHS) reimburse it for the cost of two protests filed challenging the award of a contract to Six3 Intelligence Solutions, Inc. (Six3) for intelligence support services. A1C filed its initial protest against the award to Six3 on the basis that the agency improperly converted the solicitation’s award criteria from best value to lowest-priced technically acceptable (LPTA). In response to this protest (and prior to the deadline for submitting its agency report to GAO), DHS decided to take corrective action consisting of reevaluating the proposals and making a new source selection decision. Because of the corrective action taken by DHS, GAO dismissed the initial protest by A1C.
After DHS completed its corrected action and reevaluated the proposals, A1C was informed that DHS had again selected Six3 for award. After a debriefing by DHS, A1C filed a second protest alleging that DHS failed to correct the errors identified in the initial protest, including conversion of the award criteria from best value to LPTA. Once again, shortly before the agency report was due to GAO, DHS filed a request to dismiss the second protest stating that it would review whether or not its requirements had changed, and then reevaluate the proposals to make a new award decision or cancel the solicitation. Despite A1C’s argument that the proposed corrective action by DHS was not rationally related to the issues raised in the protest, GAO dismissed the second protest. As its basis for dismissal, GAO stated that “although the agency’s actions did not necessarily constitute corrective action concerning A1C’s claims, the protest would be rendered academic by either agency action set forth in the request for dismissal.” By academic, GAO meant that regardless of the option that DHS chose (reevaluation or cancellation) the outcome for A1C would not be of practical significance. GAO went further to state that it does not consider academic protests because they don’t serve a useful public policy purpose.
Shortly after GAO dismissed the second protest, A1C filed a request to GAO for reimbursement of its reasonable protest costs. A1C claimed that it was entitled to reimbursement because DHS failed to implement the promised corrective actions of A1C’s initial protest (despite representations to the contrary), which forced A1C to file a second protest on the same grounds. GAO acknowledged that a protester may qualify for such reimbursements and that an agency may not make mere promises of corrective actions without reasonable implementation. Further, GAO stated that when an agency unduly delays taking corrective action in the face of a clearly meritorious protest, thereby causing the protester to expend unnecessary time and resources to make further use of the protest process in order to obtain relief, the protester will be eligible for a reimbursement. In this case, however, GAO did not recommend reimbursements to A1C because (1) DHS did not “unduly delay” taking corrective action because it offered proposals to remedy defects in the solicitation process before the deadlines for submitting the agency report to GAO, and (2) In GAO’s view, the protests were not clearly meritorious because the issues presented needed further development of the record through the agency report, substantial analysis of the facts and legal arguments by both sides.
It is clear that the circumstances surrounding the agency report were central to GAO’s decisions in both protests and the reimbursement request. By taking corrective action (meritorious or not) before the deadline for submitting the agency report, DHS avoided having to expend significant resources in preparing the report and was successful in getting the initial protest dismissed. Subsequently, the protester’s reimbursement request was denied because the agency report was needed to fully develop the issues on the record.
Author: Rocky Galloway
Government Contracts Practice Group