In its recent decision, Peraton, Inc., B-416916.8, et al. (Aug. 3, 2020), GAO ultimately sustained a protest that the Department of State’s corrective action was unreasonably limited—recommending the protester be reimbursed its protest costs in the process.
For more on how it reached this result, buckle up! Because it was a long road for the protester to reach the GAO sustain.
GAO recently awarded the reasonable costs of filing and pursuing a protest to an agency’s evaluation and award decision, after finding that the agency unduly delayed corrective action in response to a clearly meritorious protest.
GAO recently dismissed a challenge to the terms of a solicitation—even though those terms directly contradicted the procuring agency’s promise made during a prior protest of the solicitation. Is that right? Let’s take a look.
While GAO’s bid protest process is designed to achieve the laudable goal of providing a less costly process for procurement disputes, pursuing a GAO protest is nevertheless expensive. To offset these expenses, successful GAO protesters may be reimbursed for some of their expenses incurred pursuing a protest.
But what constitutes a successful protest that would entitle a protester to costs? In a recent request, GAO concluded that successfully defending against a motion to dismiss was not enough to entitle a party to costs, despite the fact that the agency subsequently took corrective action.
As we’ve previously discussed here at SmallGovCon, a substantial number of GAO bid protests are resolved through voluntary corrective action. While corrective action is typically a desirable outcome for a bid protest, it by no means affords a protester the opportunity to relax.
Indeed, as one offeror recently discovered, the failure to diligently protest the scope of a corrective action barred raising certain challenges later on.
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.
Supposedly, the general rule is that a protester is reimbursed the costs associated with a successful protest—including attorneys’ fees. But, as a recent case shows, that’s often not the case.
In a March decision, GAO recommended award of only a portion of fees associated with bringing a protest, even though GAO agreed that the protest was correct and the awardee should have been found technically unacceptable.