Amy Conant Hoang and Erica L. Bakies are associates in the Washington, D.C., office of K&L Gates LLP.
An agency’s decision to take corrective action in response to a protest can set off a series of reactions for interested parties. The protester’s first reaction may be relief that an agency has recognized possible flaws in the procurement (while, for an intervenor, it likely would be frustration). The second reaction may be concern that the proposed corrective action may not remedy the flaws in the procurement (or, as an intervenor, concern that the corrective action may introduce new flaws). Finally, the protester’s third reaction may be confusion regarding what can be done to challenge the corrective action and, perhaps most importantly, when to raise that challenge. If a protester raises its concerns too early, it risks dismissal of the protest as premature. If a protester raises its grounds too late, it could lose the opportunity to ever have a protest forum address its concerns.
Assessing the timeliness requirements for protesting an agency’s corrective action can prove more difficult than it first may seem. Corrective action notices usually provide few specifics as to why an agency is taking corrective action, the deficiencies an agency identified, and how the agency intends to resolve them. Due to their obscure nature, corrective action notices can make it difficult for an offeror challenging corrective action to discern when, under U.S. Government Accountability Office (GAO) bid protest regulations, it knew or “should have known” of an adverse agency action.1 As a result, offerors sometimes struggle to determine when to challenge perceived improper actions that the agency takes or fails to take during its implementation of the outlined corrective action. In this article, we discuss a number of GAO and U.S. Court of Federal Claims (COFC) decisions to illustrate the difficulty in assessing the timeliness of a corrective action protest. We also propose a new way to categorize these challenges in order to clarify the filing deadlines.
Standards for Timely Corrective Action Challenges
Challenges to corrective action filed at GAO must comply with GAO’s bid protest regulations, which state that a protest based on other than alleged improprieties in a solicitation must “be filed not later than 10 days after the basis of protest is known or should have been known (whichever is earlier).”2 When a protester challenges an agency’s corrective action, GAO’s timeliness analysis turns on whether the corrective action alters the ground rules for the competition.3 GAO has stated that a challenge to corrective action that alters the ground rules of the competition “is analogous to a challenge to the terms of a solicitation,” which, like a challenge to the terms of a solicitation, “must be filed prior to the deadline for submitting revised proposals.”4 Likewise, “in those instances where the agency’s proposed corrective action does not alter the ground rules for the competition, [GAO has] considered a protester’s preaward challenge to be premature.”5 For example, in Accenture Federal Services, LLC, GAO considered a corrective action challenge protested before the agency outlined the scope of its reevaluation.6 GAO concluded that the protest was prematurely filed because, at that point, the agency had not altered the ground rules of the competition.7
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