By: Edward Bailey
Recent decision from the GAO serves as an important reminder to contractors that, while agencies typically have broad discretion in determining the scope of any corrective actions they take, contractors may nonetheless challenge an agency’s corrective action if its scope is unreasonably narrow.
In Matter of: Peraton Inc., B-416916.8, Peraton challenged the State Department’s award of a task order to a competitor on a number of grounds including that the letters of commitment the awardee provided for its key personnel did not conform to the requirements of the solicitation. The State Department responded by filing a notice of its intent to take corrective action by re-opening discussions to confirm the availability of offerors’ key personnel to perform on the underlying contract. In turn, Peraton asked that offerors be allowed to substitute their key personnel, and the State Department granted its request. Peraton then further requested that offerors be permitted to revise all aspects of their technical and price proposals, but the State Department responded that offerors were only permitted to make changes to their key personnel’s resumes, letters of commitment, and their key personnel’s experience and certifications. Peraton responded to this limitation by filing a protest alleging that the State Department’s corrective action was unreasonably narrow in scope.
In response to Peraton’s protest, the State Department defended the limited scope of changes that it permitted offerors to make on their proposals by arguing to that “no good deed goes unpunished” and that it was unfair for Peraton to now protest a change in the scope of the State Department’s corrective action which it undertook “solely at Peraton’s request”.
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In its decision, the GAO first acknowledged that where an “agency’s proposed corrective action does not also include amending the solicitation, we will not question an agency’s decision to restrict proposal revisions when taking corrective action so long as it is reasonable in nature.”
However, the GAO rejected the State Department’s arguments and found that, while it was not required to initially grant Peraton’s request to replace key personnel, once it did so, it could not then prohibit Peraton from modifying aspects of its proposal that would be materially affected by replacing its key personnel. The GAO found that to conclude otherwise would require offerors to “submit facially inconsistent proposals” and force the State Department to ignore, for example, “the solicitation’s requirement that it evaluate how proposed key personnel align with an offeror’s technical approach.”
In sum, if an agency takes corrective action its not “the end of the road.” Instead, if you believe the agency’s corrective action’s scope is unduly restrictive, or otherwise unreasonable, you may have grounds to protest.
Edward Bailey is an associate attorney whose practice focuses on government contracts law, employment law, and litigation. Ed recently graduated cum laude from George Mason University’s Antonin Scalia Law School where he was a member of the Law Review.
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