of XX Competition and Bid Protests Daniel P. Graham, Partner, Vinson & Elkins, LLP ©2015 PubKLearning. All rights reserved.1 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?

of XX Competition and Bid Protests Daniel P. Graham, Partner, Vinson & Elkins, LLP ©2015 PubKLearning. All rights reserved.2 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 C, 2013 WL , at *3 (Fed. Cl. May 23, 2013) (citing Del–Jen Education & Training Group, B , 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 , July 22, 2015, 2015 CPD ¶ 239 (protest denied) –GAO defers to CO’s determination of issues requiring corrective action. E.g., Leidos, Inc., B , 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 , July 24, 2015, 2015 CPD ¶ 224 (citing QuanTech, Inc.-Costs, B– , June 17, 1998, 98–1 CPD ¶165)

of XX Competition and Bid Protests Daniel P. Graham, Partner, Vinson & Elkins, LLP ©2015 PubKLearning. All rights reserved.3 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 C, 2015 WL , 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 , 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.”)