Protest Challenging Proposed Corrective Action Is Premature; HeiTech-PAE, LLC, GAO B-420049.7

Protest challenging proposed corrective action is dismissed. GAO will only consider a protest challenging a corrective action when the proposed corrective action changes the ground of the competition. In this case, the corrective did not alter the ground rules of the competition. Rather, the protester merely alleged the corrective could result in an improper evaluation. The challenge to the corrective action was therefore premature.

Background 

The U.S. Citizenship and Immigration Services (USCIS) awarded a contract for administrative and clerical services. An unsuccessful offeror, HeiTech-PAE, LLC, protested the award. In response to the protest, USCIS took corrective action to reevaluate proposals. HeiTech then filed a second protest challenging the proposed corrective action. HeiTech complained that the corrective action would not remedy the errors the company identified in its first protest.

Legal Analysis

• Challenge to the Corrective Action Was Premature — When a corrective action alters the ground rules of the competition—like holding new discussions—a challenge to the corrective is analogous to a challenge to the terms of a solicitation, and GAO will consider it. But when a protest does not alter the ground rules—e,g., when the protest alleges the corrective action could result in an improper evaluation—a challenge to the corrective action is premature. Here, HeiTech merely alleged the corrective action could result in an improper future evaluation. The argument was premature.
• Corrective Action Will Not Introduce Patent Ambiguity — HeiTech contended the agency’s prior evaluation had been based on flawed interpretation of the solicitation, and it appeared the agency was going to reevaluate based on that same flawed interpretation. But the agency had indicated that it now agreed with HeiTech’s interpretation. GAO found the corrective would introduce an ambiguity.

HeiTech is represented by Katherin B. Burrows, Jacqueline K. Unger, and Eric A. Valle of PilieroMazza PLLC. The agency is represented by Dana-Marie Akpan and Beth B. Sturgess of the Department of Homeland Security. GAO attorneys Louis A. Chiarella and Peter H. Tran participated in the preparation of the decision.

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