Every government contractor that files a bid protest has the same goal in mind – corrective action. The agency made a procurement error and changes need to be made.
But just because the agency takes corrective action does not mean it will be the corrective action your firm wants. Contractors should take the time to consider the possible outcomes of a successful bid protest before filing.
Take, for example, the recent U.S. Court of Federal Appeals decision denying a protest over corrective action. In that case, an unsuccessful offeror successfully protested a United States Transportation Command non-temporary storage contract. In response to the protest, the agency took corrective action and started the process of re-evaluating all offerors in order to make a new award decision.
But this was not the corrective action the protestor expected. Because the protest argued that the original awardee’s proposal was technically deficient, the protestor wanted the government to cancel the first award and make a new award decision (in its favor) without further evaluation.
The Court rejected the idea that a protester can limit the agency’s authority to correct evaluation errors. To the contrary, the decision holds that it is within the agency’s discretion to review its prior conclusions and conduct a re-evaluation (provided that the new evaluation conforms to the solicitation and is fair to all offerors).
So is the takeaway that your firm shouldn’t file a protest unless it knows it will receive the award? Not at all. As this decision makes clear, you cannot control or limit the agency’s authority when it comes to corrective action. The correct takeaway is that you should make sure that your firm is prepared for all contingencies before moving forward with filing a bid protest – including the possibility of a complete re-evaluation.
Again, on this point, the COFC decision is extremely illuminating. Even though the protestor was successful in obtaining corrective action, it also found out that its own proposal was not considered technically acceptable by the agency (due to an alleged failure to meet the solicitation criteria). If not for that proposal drafting error, it is possible the protest would have a different outcome (including a new award decision rather than a re-evaluation).
Taking the time to work through these scenarios in advance is the key to time and cost effective bid protests. Even bid protests that result in corrective action are disappointing when they do not result in a new contract for your business.