Corrective Action Following Dismissal Request Doesn’t Mean Protester Gets Costs Reimbursed, Says GAO

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.

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Protester Missed Its Chance to Protest Corrective Action Scope, Says GAO

As we’ve previously discussed 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.

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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.

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GAO Awards Fees, but Only for Obviously Correct Protest Ground

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.

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GAO: No Attorneys’ Fees When Arguing that Corrective Action is a Ruse

When pursuing a bid protest before the Government Accountability Office, it is never a good idea to presume that you’ll get your attorneys’ fees paid by the agency.

If you are fortunate enough to recover attorneys’ fees, GAO’s general standard is to recommend paying the fees associated with all the protest grounds being pursued, whether or not they were meritorious. But although this is the general posture, it is not always the case.

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Court of Federal Claims Rejects Unsupported Decision to Cancel Solicitation

An agency ordinarily enjoys very broad discretion in its procurement-related decisions. This includes whether an agency will award a contract or, instead, cancel a procurement.

Broad as this discretion is, however, an agency does not have carte blanche to cancel a procurement on a whim. As a recent Court of Federal Claims decision shows, an agency must support its decision with sufficient information, lest the cancellation decision itself be successfully protested.

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