A recent US Court of Federal Claims (UCFC) decision may encourage other offerors a way to challenge an agency’s corrective actions if they benefit the original contract awardee. In this decision, USCFC granted a bid protest of the agency’s corrective action taken in response to an offeror’s protests to the Government Accountability Office (“GAO”). By making this decision, USCFC determined that amending the solicitation as a corrective action was not reasonable based on the standard allowed to agencies.
The offeror originally filed two protests at GAO where they challenged the award of a contract because the awardee’s proposed Program Manager (“PM”) failed to satisfy the minimum experience requirements listed in the solicitation. In responding to the first protest, the agency said it would take corrective action and re-evaluate the qualifications of the proposed PMs. After the re-evaluation, the agency made the same determination and again awarded the contract to the original awardee, even though its proposed PM remained the same. The offeror again protested to GAO, who sustained the second protest, and made the recommendation that the agency either re-evaluate proposals in accordance with the solicitation or amend the solicitation requirements to correctly define its requirements.
The agency amended the solicitation to decrease the experience required for the PM position and eliminated some of the duties of the PM position. The offeror filed a pre-award bid protest with the court, alleging that this amendment conformed the amended solicitation to the awardee’s original proposal.
The court granted the offeror’s protest, finding that agency did not justify why its needs were different than those set out in the original solicitation, or did not document any such assessment. The court found that the documents in the record showed only that the agency decided to amend the technical requirements, but not why they did so. The court stated that agencies can change their requirements without showing how the new requirements are better than the original ones. However, they must demonstrate some basis for changing the requirements. The court was concerned that the corrective action gave the appearance that the agency specifically changed the requirements to conform to the awardee’s proposal.
So the end result is that an agency may need to provide some rationale when amending solicitation requirements if the end result favors a particular offeror.