Every government contractor that files a bid protest has the
same goal in mind – corrective action. The agency made
a procurement error and changes need to be made.
But just because the agency takes corrective action does not
mean it will be the corrective action your firm wants.
Contractors should take the time to consider the possible outcomes
of a successful bid protest before filing.
Take, for example, the recent U.S. Court of Federal
Appeals decision denying a protest over corrective
action. In that case, an unsuccessful offeror
successfully protested a United States Transportation Command
non-temporary storage contract. In response to the protest,
the agency took corrective action and started the process of
re-evaluating all offerors in order to make a new award
But this was not the corrective action the protestor
expected. Because the protest argued that the original
awardee's proposal was technically deficient, the protestor
wanted the government to cancel the first award and make a new
award decision (in its favor) without further evaluation.
The Court rejected the idea that a protester can limit the
agency's authority to correct evaluation errors. To the
contrary, the decision holds that it is within the agency's
discretion to review its prior conclusions and conduct a
re-evaluation (provided that the new evaluation conforms to the
solicitation and is fair to all offerors).
So is the takeaway that your firm shouldn't file a protest
unless it knows it will receive the award? Not at all.
As this decision makes clear, you cannot control or limit the
agency's authority when it comes to corrective action.
The correct takeaway is that you should make sure that your
firm is prepared for all contingencies before moving forward with
filing a bid protest – including the possibility of a
Again, on this point, the COFC decision is extremely
illuminating. Even though the protestor was successful in
obtaining corrective action, it also found out that its own
proposal was not considered technically acceptable by the agency
(due to an alleged failure to meet the solicitation
criteria). If not for that proposal drafting error, it is possible the
protest would have a different outcome (including a new award
decision rather than a re-evaluation).
Taking the time to work through these scenarios in advance is
the key to time and cost effective bid protests.
Even bid protests that result in corrective action are
disappointing when they do not result in a new contract for your
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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The Committee on Foreign Investment in the United States (CFIUS, commonly pronounced "syphius") reviews M&A transactions that may pose a risk to national security through foreign control of a US business.
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