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Agency Corrective Action Akin to Reopening of the Solicitation

  • By GCPC GovCon Legal Team
  • May 8, 2013
  • Blog Articles
  • 0 Comments

Bid Protest Weekly Newsletter by Bryan R. King, Attorney, General Counsel PC

Date: Wednesday, May 8, 2013, 8:05am EST

Quest Diagnostics, Inc. v. United States, No. 12-907C, May 1, 2013
In this bid protest filed before the Court of Federal Claims, the protester, Quest Diagnostics, Inc., made several challenges to an award decision made by the Army Medical Command, Center for Health Care Contracting (MEDCOM), in which Laboratory Corporation of America (“LabCorp”) was selected for award. While each of these grounds was dismissed by the Court, the Court’s discussion of one ground in particular warrants further discussion: Quest’s argument that MEDCOM improperly allowed LabCorp to revise its technical proposal after corrective action.

In this procurement, MEDCOM originally selected Quest for award. That award decision was protested by LabCorp, and the agency chose to take corrective action. The offerors submitted revised proposals, and after a new evaluation, MEDCOM selected LabCorp as the awardee. Quest then filed a protest challenging this award decision, and the agency again chose to take a second corrective action. After another re-evaluation, MEDCOM again selected LabCorp as the awardee. Quest filed its second protest with GAO, which was denied.

Quest then filed a protest before the Court, challenging several aspects of MEDCOM’s evaluation and award decision. One of the challenges made by Quest was that MEDCOM improperly allowed LabCorp to amend its proposal after the first corrective action. Quest’s argument was that the agency’s first corrective action only addressed pricing questions, and thus limited the offerors’ proposal revisions to price proposals. Quest pointed out that LabCorp used the opportunity given by the first corrective action to update its technical proposal. Quest argued that the non-price related updates were outside the scope of the first corrective action, and therefore should not have been considered by the agency.

The Court agreed with Quest that while the solicitation amendment issued as the first corrective action dealt with questions of price, LabCorp made revisions to its technical proposal. The updated technical proposal ultimately resulted in an improvement to LabCorp’s technical rating, which as recognized by the Court, may have influenced the award decision. However, the Court noted that while the first corrective action did address only pricing, it did not explicitly state that offerors could not revise other parts of their proposals.

The Court explained that when an agency initiates corrective action that invites proposal revisions, it is essentially a re-opening of the solicitation. Under the FAR, offerors are allowed to submit modifications to their proposals at any time before the closing date for the solicitation. Thus, the Court concluded that when an agency issues an amendment to a solicitation as part of corrective action, offerors may revise any part of their proposal, including those not the subject of the amendment, unless the agency explicitly restricts the scope of revisions.

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