Beware: Your Protest Can Lead to Corrective Actions That You Don't Like
July 13, 2018
By: Eric Whytsell
Disappointed offerors sometimes adopt a protest “strategy” that goes something like this: (1) protest on the basis of a known or suspected problem with the procurement; (2) convince the agency to take corrective action to address the problem you identified; (3) reap the rewards as the agency’s corrective action improves your competitive position with respect to the problem you pointed out. Just as no battle plan survives contact with the enemy however, such strategies all too often go awry. As the recent Government Accountability Office (GAO) decision in URTruckBroker Corporation, B-416249.2 (June 21, 2018) reminds us, once a protest results in corrective action by the agency, the protester may have little control over the nature of the corrective action--and may find itself in a less than optimal position.
The procurement in question contemplated an award decision made to the low-cost, technically acceptable offeror. URTruckBroker’s original protest had challenged the agency’s finding that it was technically unacceptable. Unfortunately, what followed was a classic “good news, bad news” situation. The good news was that the agency decided to take corrective action in response to the initial protest. The bad news was that the corrective action it chose to take was to terminate the awarded contract, amend the solicitation, and accept revised quotations, rather than simply reevaluate the submitted quotations under the original criteria as URTruckBroker wanted. So URTruckBroker protested again, this time arguing that such a comprehensive response to its earlier protest challenging the agency’s evaluation process was overkill and, therefore, unreasonable.
In response, the agency explained that the original protest had prompted it to undertake a thorough review of the entire procurement process, during which it noticed that the solicitation contained both Lowest Price Technically Acceptable (LPTA) and best-value tradeoff language, a combination that created an ambiguity concerning the basis for award. Concerned that this ambiguity may have created some confusion preventing the offerors from having a common understanding of how the agency would make its award decision, the agency wanted to take corrective action that would remove the ambiguity altogether. URTruckBroker argued that the solicitation was perfectly clear and the agency’s proposed corrective action was unnecessary.
The GAO sided with the agency, finding as an initial matter that the solicitation did, in fact, contain an ambiguity with respect to the agency’s intended basis for award. It noted that, just as the agency claimed, the solicitation contained both the precise language contemplated by FAR 15.101-1(b) that is to be used when making award using the best-value tradeoff process and a statement that the contract would be “awarded using the LPTA process” and LPTA language identified by FAR 15.101-2(b)(1).
According to the GAO, the conflicting language made the agency’s decision to amend the solicitation to resolve the ambiguity fell squarely within its broad discretion to take corrective action to remedy an error in the procurement process. Generally the GAO does not second-guess specific corrective action as long as it reasonably remedies the solicitation defect that prompted it. Here, the GAO found a potentially problematic ambiguity, and not reason to object to the agency’s decision.
The lesson? Be careful what you ask for--and be ready for anything. Even if you “win” corrective action by the agency, your protest might not result in the precise outcome you were seeking.
Eric Whytsell is responsible for the contents of this article.
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