Link: GAO Decision
Protestor: Jones Lang LaSalle Americas, Inc.
Agency: Department of the Army
Disposition: Protest Denied.
Protest objecting to proposed corrective action taken in response to earlier protest is denied where agency reasonably determined that the proposals received in earlier acquisition indicated that there were two reasonable interpretations to an amendment requesting proposal revisions and therefore offerors did not compete on an equal basis
General Counsel P.C. Highlight:
Jones Lang LaSalle Americas, Inc. (JLL) protested the corrective action taken in response to the protest of Booz Allen Hamilton (BAH), after JLL was awarded a contract to provide professional financial and real estate development services in connection with the Army’s Military Housing Privatization Initiative. After receiving initial proposals, the agency had issued an amendment, which included an increase in the number of facilities the contractor would manage under CLIN 0005. In response to a question, the agency informed all offerors that the amendment would not involve revisions to technical volumes, but rather only a change as to pricing of CLIN 0005. Several offerors, including JLL, revised their prices for CLIN 0005 and other CLINs as well; BAH and other offerors only revised their prices for CLIN 0005. JLL was awarded the contract, and BAH protested on the grounds that the agency improperly permitted JLL to submit a “wholesale revised pricing proposal” rather than a limited price adjustment to CLIN 0005. The agency then chose to take corrective action, requesting final proposal revisions on price before reevaluating proposals and making a new source selection decision.
The GAO found the corrective action to be within the contracting agency’s broad discretion, noting that the agency believed the amendment was latently ambiguous and that its earlier acceptance of JLL’s overall price revisions had improperly treated JLL more favorably than other offerors. It rejected JLL’s assertion that the ambiguity was a patent one such that BAH’s post-award protest was untimely, pointing out that an agency may take corrective action regardless of whether a protest is timely. Finally, it dismissed JLL’s claim that it had been irreparably competitively compromised through the disclosure of its price and proprietary information to BAH during BAH’s debriefing.
If a successful offeror finds its award cancelled in response to a protest, with the agency deciding to take corrective action, the awardee will likely not be able to successfully protest the corrective action. An agency has broad discretion to take corrective action if it suspects that the fairness and impartiality of the competition was compromised. The GAO is unlikely to question the agency’s choice of corrective action so long as it seems suitable to remedy the agency’s concerns. If the awardee is still eligible to compete in the resolicitation, it may be wiser for the awardee to focus on revising its proposal so as to remain the top candidate for award.