Link: GAO Opinion
Agency: Department of the Army, Corps of Engineers
Disposition: Protest denied.
Keywords: Corrective Action
General Counsel P.C. Highlight: In taking corrective action in response to a protest, the agency has considerable discretion to determine the scope of that corrective action, including requesting new final proposal revisions from all offerors in the competitive range.
The Army issued a request for proposals (RFP) to design and construct an ammunition supply point at Bagram Airfield, Afghanistan. The RFP provided for a best value evaluation on the basis of experience, past performance, project management plan, and price. Following an evaluation of 15 submitted proposals, the Army awarded the contract to ZAFER Construction Company. This award was protested by Contrack International, Inc. on the basis that the Army’s evaluation under the project management component was unreasonable and inconsistent with the RFP criteria. Contrack then filed a supplemental protest, challenging the fact that the Army had improperly allowed ZAFER to submit a 20-page project management plan, even though the solicitation limited the plans to 6-pages. The supplemental protest also alleged that the agency engaged in unequal treatment by criticizing Contrak’s compliant 6-page plan for lack of detail, while giving credit to ZAFER’s non-compliant 20 page plan for having greater detail.
As a result, the Army announced that it would take corrective action by terminating the contract, amending the solicitation, and allowing all offerors in the competitive range to submit revised proposals. ZAFER then protested the terms of this corrective action, principally basing its challenge on the fact that the Army’s action would permit new and complete proposals, including price revisions, to be submitted. ZAFER alleged that this was overbroad and contradicted the explicit representations from the Army’s counsel that the corrective action would be limited to the project management plan page limitation issue. By allowing a broad range of resubmitted proposals, after having exposed the prices, ZAFER argued that its original low price was unfairly prejudiced.
In addressing the protest of the corrective action, GAO stated that agencies have broad discretion to take corrective action where they determine that such action is necessary to ensure fair and impartial competition. GAO will not intervene in a corrective action, unless the corrective action is deemed to be incapable of remedying the agency’s concern. Similarly, a request for revised price proposals is not improper merely because the awardee’s price was revealed in an earlier award decision, if the request was otherwise unobjectionable.
The Army’s reasoning that due to the time lapse between proposal submissions and the corrective action, the prices may not accurately reflect offerors’ cost for the project, was deemed to be valid and not an abuse of its discretion. GAO denied ZAFER’s protest.