Bid Protests: Understanding Corrective Agency Action

How to Obtain Corrective Agency Action and Why it Matters October 9, 2012 After having obtained voluntary corrective Agency action in three bid protest cases this September, the issue of voluntary corrective Agency action continues to be a hot topic in government procurement. Benefits: Obtaining voluntary corrective Agency action in the early stages of a case has numerous benefits. For example, it results in the Protestor essentially prevailing on all issues without the risk of an adverse decision by the GAO or another agency. Furthermore, it increases the likelihood of the Protestor having to spend much less money and time in attempting to force the federal government to comply with federal law. Potential Downsides: In general, a quick victory usually has very few downsides. However, voluntary corrective Agency action will usually result in an unpublished dismissal. This is because an Agency's de facto admission of the Protestor's allegations removes any controversy between the parties. This leaves the GAO or other adjudicating authority with nothing to decide. Because these cases are not published, they have no value in the decision making process for future bid protests. However, since they are public records, I will now be posting them here starting this month. I will also be posting copies of Agency pleadings here as well, so the public can begin to see the inner workings of how these cases are litigated by the federal government. A final downside is that an Agency can usually avoid being responsible for the Protestor's attorney's fees and costs if the Agency takes voluntary corrective action before the filing of the Agency Report. Strategy:

From a strategic standpoint, the cases that are best suited for voluntary Agency corrective action usually have at least three very important factors. First, the protest should allege that the procurement at issue has one or more defects that do not constitute a disputed issue of material fact. Although there may be other issues that the government and the Protestor do not agree on, it only takes one allegation that is beyond dispute in order to increase the likelihood that the Agency will voluntarily take corrective action. Second, the protest should allege one or more very clear violations of federal law in the Solicitation or memorandum of Agency action itself. In general, clear violations of the Competitiveness in Contracting Act (CICA) or the Federal Acquisition Regulation (FARs) tend to be the most effective. Third, the protest should allege clear prejudice (or damage ) to the Protestor. Although a very clear and precise explanation of how the Protestor was harmed is essential in any case, it is especially important when seeking quick resolution through voluntary corrective action. All three of this month's cases met these factors. Two cases involved allegedly improper Classification Codes in FedBizOpps. The other case involved an allegedly improper sole source contract containing an allegedly improper proprietary specification. Even though the Solicitations were susceptible to additional legal challenges, corrective Agency action was obtained by giving the Agency a clear way to settle the matter promptly without the need for a lengthy and expensive legal challenge. Practical Tips: Although bid protests often have the reputation of being a long and drawn out battle, this is not always the case. When considering whether to file a bid protest, focusing on these three factors can help you to make a more informed decision. If these factors are properly examined and implemented, you may be able to simultaneously increase your likelihood of success while decreasing your legal fees and costs. Although prompt Agency action will stop your ability to collect legal fees and costs from the government, it is oftentimes better to not spend that money in the first place than it is to seek reimbursement from the government after the fact. Good Luck on that next bid!
Frank V. Reilly 101 NE Third Avenue, Suite 1500 Fort Lauderdale, FL 33301 (561) 400-0072 phone frank@frankvreilly.com www.frankvreilly.com