What You Need to Know

• Key takeaway #1Protests of an agency’s actions during corrective action can raise tricky timeliness issues—if the protest could be construed as challenging the ground rules of the procurement, the protest may be subject to the pre-award timeliness rules. But protests that do not challenge the procurement ground rules, and instead anticipate improper agency action, may be premature if filed before award.
• Key takeaway #2When considering whether–and when–to protest, companies should confer with protest counsel to ensure that timeliness issues do not prevent pursuing the protest.

Client Alert | 2 min read | 08.14.24

When to file a protest challenging an agency’s corrective action is an issue that has confused protesters for over a decade since GAO’s Domain Name Alliance Registry, B‑310803.2, Aug. 18, 2008, 2008 CPD ¶ 168 decision.  In Domain Name, GAO held where a protester essentially challenges the “ground rules” of corrective action, that protest must be filed pre-award or risk being dismissed as untimely.  This has led to the proliferation of overly cautious protesters bringing pre-award challenges to corrective actions only to have GAO dismiss such protests as merely anticipating improper agency action and therefore premature.  Indeed, the line between a timely and untimely corrective action protest is unclear.  And that confusion persists, as evidenced in two recent GAO dismissals—General Dynamics Information Technology, Inc., B-422421.6, B-422421.7, July 17, 2024, and Peraton Inc., B-422409.2, B‑422409.3, July 22, 2024.

In General Dynamics, GAO dismissed protest allegations challenging an agency’s pending corrective action as premature.  Following an initial protest challenging the agency’s price realism and professional compensation evaluations, the agency agreed to take corrective action stating that it would “re-perform the price realism analysis . . . to include the professional compensation of all the professional labor categories included in the requirements set forth in the [s]olicitation.”  General Dynamics protested, alleging that the agency’s statement did not “make clear that the agency will evaluate price realism and professional compensation separately as required by the solicitation and procurement law, and instead reflects that the agency anticipates improperly conflating the two analyses.”  GAO dismissed the allegations as premature, finding that General Dynamics’ protest merely anticipates improper agency action during the corrective action reevaluation.  In this regard, GAO emphasized that agencies are presumed to conduct procurements in a fair and reasonable manner and in accordance with the terms of the solicitation.  As a result, GAO will not consider protest allegations speculating that an agency will not do so.

Just five days later, GAO issued another decision reaching the same result.  In Peraton  (which we previously discussed here), the agency eliminated Peraton based on the agency’s organizational conflict of interest (OCI) and unfair competitive advantage (UCA) concerns about Peraton.  Peraton protested and the agency responded by taking corrective action and agreed to reopen the investigation.  A month later, Peraton then filed a second protest, challenging the agency’s conduct of its re-opened investigation, as well as what Peraton viewed as the contracting officer’s lack of impartiality.  Here, as well, GAO dismissed Peraton’s allegations as premature, emphasizing that “where an agency has not made a final determination concerning an OCI issue, a protest based on such an allegation is premature.”  More broadly, GAO noted that, where ongoing corrective action does not alter the ground rules of the competition, a protest challenging the agency’s conduct of that corrective action is generally premature when brought before award or the protester’s disqualification.

We would like to thank Cherie J. Owen, Consultant, for her contribution to this alert.