It’s Tough to Challenge a Corrective Action

For a protester, a corrective action from the agency is a win. It gives the protester another bite at the apple to possibly win a contract award. But for the initial awardee, a corrective action has some unfortunate consequences, the dreaded double whammy.

Besides the obvious–losing the award–the former awardee’s price is usually revealed to the other competitors. Could this give the competitors a leg up when proposals are resubmitted as part of the corrective action? Yes. Does this amount to a flaw in the corrective action such that GAO will sustain a protest over it? Not likely.

GAO recently faced that dilemma. GAO’s decision found that DynCorp International, which challenged the corrective action for a Customs and Border Protection (CBP) solicitation seeking aviation logistics and support, was out of luck.

CBP originally chose DynCorp for the work in May 2019. Two competitors (PAE Aviation and Technical Services, LLC, and Vertex Aerospace, LLC) protested and GAO dismissed the protests after the agency said it would take corrective action.

For the corrective action, CPB made no changes to the solicitation and asked offerors to final proposal revisions for reevaluation. Offerors were allowed to revise pricing based on updated Collective Bargaining Agreement (CBA) rates and a changed performance period.

One competitor (PAE) filed an agency-level protest, “seeking clarification of the instructions for submitting revised pricing.” In response, the agency notified offerors it “was reverting to its original corrective action plan, that is, the agency would re-evaluate the previously submitted proposals and make a new award decision, but would not seek any revisions to previously submitted proposals.” Instead of considering the revised pricing that offerors had recently submitted, it would “work with the selected awardee’ to adjust the price based on the change in the period of performance and the updated CBA.”

That led PAE and Vertex to protest at GAO again, arguing that CPB was required to use the updated pricing that offerors submitted and that offerors should be allowed to revise proposals based on changes to the required pricing.

CPB again took corrective action, “this time by amending the solicitation and requesting revised price and technical proposals that would provide the basis for a reevaluation and new best-value tradeoff decision.” In September, CPB amended the solicitation to change the period of performance and update CBA wage rates.

DynCorp protested the “the agency’s decision to permit unlimited proposal revisions” and argued it was “prejudicial to DynCorp for the agency not to disclose the total evaluated cost and technical ratings for all offerors from the initial evaluations.” In other words, DynCorp said it was unfair that the other offerors got to find out DynCorp’s price but not the other way around (which kind of makes sense).

But GAO didn’t see it that way, viewing the exposure of DynCorp’s price as just the cost of doing business. According to GAO, “agencies have broad discretion to take corrective action where they determine that such action is necessary to ensure fair and impartial competition.” Allowing revised price proposals are not unreasonable simply because an awardee’s price has been revealed.

As GAO put it, “an agency is not required to equalize the possible competitive advantage flowing to other offerors as a result of the release of information in a post-award setting, when the release was not the result of preferential treatment or other improper action on the part of the agency.”

A corrective action can leave the awardee in an unfortunate position. It has lost the award and its price and other evaluation information have often been released to competitors. But GAO has confirmed that, absent improper agency action, there’s little recourse to protest a corrective action after exposure of an awardee’s information.

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