Link: GAO Decision
Protestor: Naval Systems, Inc.
Agency: Department of the Navy
Disposition: Protest Denied.
Protest challenging agency’s proposed corrective action in response to an earlier protest is denied where the record shows that the agency’s corrective action– revising the solicitation, obtaining revised proposals and making a new source selection decision–is necessary in order for the agency to make award for its actual requirements.
General Counsel PC Highlight:
Naval Systems, Inc. (NSI) protested the proposed corrective action contemplated by the agency in connection with its acquisition of various program and life cycle management and support services for the presidential helicopters program office. An initial task order award to NSI was protested, and the agency announced it would take corrective action by amending the solicitation, obtaining and evaluating revised proposals, and making a new source selection decision. NSI objected to a significant decrease in the estimated level of effort from that contemplated by the solicitation, as well as a requirement that appropriate contractor personnel be required to obtain Yankee White access within a certain period after issuance of a task order.
The GAO found no basis to object to the agency’s corrective action, noting that the general practice is for an agency to amend a solicitation (or issue a new one) when it discovers that its requirements have materially changed such that the original solicitation no longer reflects its needs. The GAO found that a 35% change in the level of effort provided an adequate basis for the agency’s proposed corrective action of amending the RFP. Although the level of effort in the solicitation was for informational purposes only, offerors relied on that estimate in preparing their proposals and were therefore prejudiced because they were led to formulate their proposed staffing approaches and costs in a manner that did not actually meet agency needs. The GAO also found reasonable the corrective action regarding Yankee White access, rejecting NSI’s argument that offerors knew from other solicitation provisions that Yankee White access would be required. The GAO pointed out that, absent an amendment to the RFP, there would be no enforceable contractual requirement for the awardee to obtain Yankee White access for its personnel.
Agencies have broad discretion to determine the scope of corrective action taken to ensure fair and impartial competition. The GAO will generally not object to any particular form of corrective action, so long as it is appropriate to remedy the issues which caused the agency to take corrective action in the first place. Corrective action often takes the form of amending the solicitation to correct the provisions which may have led to the protest in the first place. If an offeror is adversely affected by the agency’s decision to take corrective action, a protest of the nature of the corrective action is unlikely to be successful, and the offeror should focus on preparing a new or revised proposal which satisfies the new requirements.