We are all too familiar with the current agency practice of taking corrective action when a protest is filed. Agencies, fearful of incurring any liability for protester’s legal fees in the event the protest is sustained, often cave in at the slightest sign of weakness in the agency record and take corrective action in lieu of fighting to defend the award decision. This can be very frustrating for everyone involved in the procurement. But, as one competitor recently learned the hard way, you cannot sit back and wait to see the outcome of the corrective action. If you do, you may be too late to protest. NVE, Inc. v. United States, No. 15-111-C (COFC May 18, 2015).
NVE protested a Navy award to ACE Maintenance & Services, Inc., challenging corrective action taken by the agency in response to prior protests. The Court of Federal Claims found that NVE had waived its right to challenge the agency’s decision to take corrective action and to reopen discussions and reevaluate proposals with offerors in the competitive range because NVE waited too long – it waited until after the Navy had already received and reevaluated proposals and awarded a new contract.
According to the Court, a party who participates in a second round of proposal submissions, rather than protesting, "cannot subsequently challenge an agency’s decision to reopen discussions or reevaluate proposals." Vendors cannot "sit on their rights to challenge what they believe is an unfair solicitation, roll the dice and see if they receive award and then, if unsuccessful, claim the solicitation was infirm."
Here, once the agency notified NVE that it would reopen discussions with offerors, the agency’s proposed corrective action was "ripe for protest." At that time, if NVE objected to the agency’s proposed corrective action, it had to protest – before revised proposals were due. NVE could not "wait for the agency to complete the corrective action to see if it received the award." Instead, NVE participated in the second round of proposal evaluations, and, as a result, waived its right to challenge the agency’s decision to take corrective action.
Lindsay Simmons is responsible for the contents of this Article.
© Jackson Kelly PLLC 2015