Link: GAO Decision
Protestor: EOD Technology, Inc.
Agency: Department of the Army
Disposition: Protest Dismissed.
General Counsel PC Highlight:
EOD Technology, Inc. protested the corrective action taken by the agency under an RFP for security services in Afghanistan. The RFP provided for award to the lowest-priced, technically acceptable offeror. In its written debriefing following award to Olive Group, EOD was informed that its proposal was otherwise technically acceptable and offered the lowest price, but was determined to be not responsible. EOD protested, in response to which the agency took corrective action. Approximately two weeks later, EOD learned that the agency had authorized Olive Group to begin performance, and was informed that EOD should have received official notice that it had again been found nonresponsible. EOD again protested, in response to which the agency requested that EOD respond to specific concerns raised about EOD’s responsibility. EOD then filed a supplementary protest, arguing that the agency improperly re-awarded the contract to Olive Group and/or authorized contract performance before completing its reevaluation of EOD’s responsibility.
The GAO agreed with the agency that EOD’s protest of the agency’s nonresponsibility determination was premature, on the grounds that the agency had not yet made a new finding concerning EOD’s responsibility. The GAO then found that FAR § 9.105-2(a), requiring a responsibility determination prior to proceeding with award, was not implicated because Olive Group was the prospective contractor, not EOD.
The CICA stay allows protestors to suspend performance of a contract where the agency receives notice of the protest within 10 days of contract award, or within 5 days of a required debriefing, and while the protest is pending. If the GAO dismisses a protest as academic, following agency corrective action, the stay will expire. Protestors should remember that, like in this procurement, the agency may begin transitioning the contract to avoid a lapse of services, while performing its corrective action. The ability to prevent performance of the contract will depend on the nature of the procurement as well as the scope of the corrective action taken by the agency.