Download pptx - Of XX Competition and Bid Protests Daniel P. Graham, Partner, Vinson & Elkins, LLP ©2015 PubKLearning. All rights reserved.1 Bid Protests – Agency Corrective

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Competition and Bid ProtestsDaniel P. Graham , Partner, Vinson & Elkins, LLP

©2015 PubKLearning. All rights reserved.

• Bid Protests – Agency Corrective Action Prior to Decision

– Protestor alleges multiple protest grounds

– Before GAO decides protest, Agency takes voluntary corrective action, but not on all protest grounds

– E.g., Agency decides to re-evaluate one technical factor, but leaves the rest of evaluation in place

– Agency then issues new award decision

• Issues:

– May agencies authorize work to begin on protested award while taking corrective action?

– Can protesters successfully challenge scope of corrective action?

– Does CICA automatic stay apply to protest against new award decision?

– May protesters include protest grounds from first protest in protest against the new award decision?

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• May agencies authorize work to begin on protested award while taking corrective action?

– Surprise, yes!

– If agency did not expressly rescind contract award as part of taking corrective action.

– Agency “accepts risk” that, e.g., its re-evaluation will result in termination costs.

– Solutions by Design Alliant Joint Venture, LLC v. United States, No. 13-331C, 2013 WL 2457279, at *3 (Fed. Cl. May 23, 2013) (citing Del–Jen Education & Training Group, B- 401787.3, May 4, 2010, 2010 CPD ¶ 110))

• Can protesters successfully challenge scope of corrective action?

– Only if corrective action “fails to address a clearly meritorious issue . . . .” Research Analysis & Maint., Inc., B-410570.6, July 22, 2015, 2015 CPD ¶ 239 (protest denied)

– GAO defers to CO’s determination of issues requiring corrective action. E.g., Leidos, Inc., B-409214.4, Jan. 6, 2015, 2015 CPD ¶ 63

– Generally, any re-evaluation moots all protest grounds; could result in different award decision. “[T]he procurement decision that protester would have us consider no longer exists.” Onesimus Def., LLC, B-411123.3, July 24, 2015, 2015 CPD ¶ 224 (citing QuanTech, Inc.-Costs, B–278380.3, June 17, 1998, 98–1 CPD ¶165)

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• Does CICA automatic stay apply to protest against new award decision?

– Corollary to notion that corrective action erases entire previous award decision, but technically an open issue.

– Government backed down from arguing stay does not apply. FCI Fed., Inc. v. United States, No. 15-430C, 2015 WL 1956351, at *1 (Fed. Cl. Apr. 30, 2015) (agency agreed to voluntary stay)

– COFC dicta implies stay applies. Supreme Foodservice GmbH v. United States, 109 Fed. Cl. 369, 383 (2013)

• May protesters include protest grounds from first protest in protest against the new award decision?

– Generally, any grounds presented by new award decision fair game.

– Exception: if ground was previously considered and denied. Wai-Stoller Servs., LLC, B-408248.13, May 29, 2015, 2015 CPD ¶ 201 (“an offeror may not compel an agency conducting a reevaluation to refer to its prior protest to remedy defects in its proposal.”)