Protesters Have Remedies When Promised Corrective Action Doesn’t Materialize

When an agency announces it will take corrective action in response to a protest, protesters can usually view that as a "win." Whether the agency will re-evaluate existing proposals or issue an amended solicitation inviting offerors to submit new or revised proposals, the protester gets a second chance to win the contract that it didn't win the first time around.

That's the theory, and that's usually the reality.

But, what if an agency announces it will take corrective action and doesn't? In that case, not only does the protester not get the relief it was seeking by protesting, insult may be added to injury if the agency award's the protester's competitor a sole-source bridge contract.

The original protester has a remedy: filing a new bid protest, this time against the sole-source bridge contract.

A recent, extreme example is Global Dynamics LLC v. United States, No. 17-1875C (U.S. Court of Federal Claims, May 1, 2018), involving a procurement that dates back to 2012 and has been the subject of at least five protests. After each of the protests, the agency issued a sole-source bridge contract, ostensibly until it could complete the procurement. Most recently, the agency said it would take corrective action in response to yet another protest, but it had not yet done so after 250 days. Instead, the agency continued to obtain the nursing services through a sole-source bridge contract.

The protester Global Dynamics cried foul, and the Court of Federal Claims agreed that the government had not properly justified awarding yet another sole source contract. (The agency argued, in part, that it used to have five contracting officers but, as a result of three retirements, it had only one contracting officer left. The Court responded sardonically: "Defendant’s subtraction skills  notwithstanding, in the court’s view, the fact that three officers retired is not enough to excuse the agency’s failure to ensure it was properly staffed.")

The decision is at https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2017cv1875-80-0