Link: GAO Opinion
Agency: Department of Labor
Disposition: Protest denied.
Keywords: Corrective Action
General Counsel P.C. Highlight: Where there is a need for continued performance under a protested contract, an agency generally may permit the original awardee to continue performance (after the lifting of any applicable stay) pending the implementation of corrective action undertaken in response to the protest.
Del-Jen Education and Training Group protested the award of a contract to Res-Care, Inc. for establishment of a Job Corps Center in St. Petersburg, Florida. The procuring agency, the Department of Labor, considered Del-Jen’s protest grounds and decided to take correction action to include discussions with offerors, requesting final proposal revisions, and making a new source selection decision. During the pendency of the corrective action, Res-Care continued to perform the contract under an agency override of the CICA automatic stay of performance. Del-Jen then protested Res-Care’s continued performance and, as a result of the protest, the Department of Labor decided to terminate Res-Care’s contract and give the work, during the balance of the corrective action, to a contractor who had not submitted a proposal.
Del-Jen then protested to the GAO that Res-Care should have been excluded from the award because it had obtained a significant competitive advantage and unequal access to information regarding the project that it was otherwise free to include in its final proposal revisions.
GAO noted that, where there is a need for continued performance under a protested contract, an agency generally may permit the original awardee to continue performance (after the lifting of any applicable stay) pending the implementation of corrective action undertaken in response to the protest. GAO determined that based on this, a competitive advantage accruing to the original awardee as a result of continued performance does not constitute an unfair advantage for which the agency is required to compensate. This is similar to the natural advantage that an incumbent has, which an agency is not required to compensate for. GAO denied the protest.