Corrective Action Do-Over: Protester Cries Foul, But GAO Says Play On

The protester challenged the scope of the agency’s corrective action, arguing it was improperly tailored to benefit the original awardee and impermissibly ignored previously raised protest grounds regarding the technical evaluation. GAO denied the protest in part and dismissed it in part, holding that the agency’s corrective action was reasonably tailored to address the procurement flaw that prompted it, and that challenges to the agency’s decision not to revisit prior evaluation findings were premature when brought before a new award decision.

DCS Corporation, GAO, B-423820.6

• Background – The Army issued a task order solicitation for systems engineering and technical assistance support services. After twice awarding the task order to the awardee and facing multiple protests, the agency took corrective action a third time to address ambiguities in the small business participation requirements and a flaw in the awardee’s proposal (identifying a large business as a small business subcontractor). The agency amended the solicitation and limited proposal revisions to the small business participation, cost/price, key personnel, and organizational conflict of interest volumes. The protester challenged this scope, claiming it improperly favored the awardee.
• Intervention Standards –  As a preliminary matter, GAO addressed two requests to intervene. GAO reiterated that admitting intervenors in pre-award protests is the exception, not the rule. The original awardee was permitted to intervene because the protest specifically sought its exclusion from the competition and alleged the corrective action was tailored to benefit it—giving it a substantial prospect of receiving award if the protest were denied. Another offeror that had previously protested was denied intervention because being an “interested party” to file its own protest does not automatically qualify a firm as an “intervenor” in another party’s protest under GAO’s regulations.
• Timeliness of Corrective Action Challenge – GAO distinguished between two types of corrective action challenges. Challenges to the scope of discussions and proposal revisions are analogous to solicitation challenges and must be raised before award. However, challenges to an agency’s decision not to reexamine prior evaluation findings do not implicate the ground rules of the competition and are premature before a new award decision. Accordingly, GAO dismissed as premature the protester’s arguments that the agency should have revisited its technical evaluation, since a new award decision could render those complaints academic.
• Scope of Corrective Action – The protester argued the corrective action was pretextual and designed to benefit the awardee. GAO disagreed, explaining that agencies have broad discretion to fashion corrective action so long as it addresses the underlying concern. Here, the corrective action allowed three excluded offerors to fix small business participation issues stemming from ambiguous solicitation language, while giving all offerors—including the protester—a chance to revise pricing
• Allegations of Bias – The protester pointed to an internal agency email stating a position would “transition to the SETA contract with Amentum” as evidence of bias. A sworn declaration explained the email was a hasty misstatement by someone not involved in the corrective action decision. GAO also rejected arguments that the agency’s shift in litigation position evidenced bias, noting that taking corrective action is not a concession that a protest ground has merit.
• Meaningful Discussions – The protester argued the agency failed to conduct meaningful discussions by not addressing alleged significant weaknesses in its oral presentation. GAO rejected this argument, noting that discussions must address deficiencies and significant weaknesses—but the protester’s proposal and presentation received neither. The evaluation aspects the protester complained about merely explained why certain elements did not merit the highest possible ratings, not that they were deficient. Agencies are not required to conduct all-encompassing discussions and need only lead offerors into areas requiring amplification.

The protester is represented by James Y. Boland and Emily M. Rios of Venable LLP. The intervenor, Amentum Services, Inc., is represented by Craig A. Holman, Thomas A. Pettit, and Roee Talmor of Arnold & Porter, Kaye, Scholer, LLP. The government is represented by Jonathan A. Hardage and Emily Nottingham of the Department of the Army. GAO attorneys Michael Willems and Evan D. Wesser participated in the decision.