Procuring agencies often take corrective actions in response to bid protests, both following bid protest decisions and voluntarily before decisions are rendered on the merits of the protest. The scope of corrective actions is typically within the discretion of the procuring agency, provided the action is appropriate to remedy a flaw that the agency believes exists in its procurement process. Protesters may nevertheless challenge the scope of corrective actions as overly broad or too narrow, with the former challenge typically more difficult to sustain. When filing such protests at the Government Accountability Office (GAO), protesters should file within ten days of the announcement of the corrective action, if revised proposals are not required. Otherwise, protesters must file their protests before the deadline for submitting the revised proposals. In such protests, the GAO will generally not object to a particular corrective action taken by a procuring agency, provided the action reasonably relates to and remedies the concern that prompted it.
In B-423269.2, a protest decision issued on April 23, 2025, the GAO denied a bid protest challenging the scope of the procuring agency’s corrective action as overly broad. The underlying procurement involved a request for proposal (RFP) issued by the United States Marine Corps (USMC) for the acquisition of support services for its Program Manager Expeditionary Radars portfolio. The RFP contemplated a best-value tradeoff evaluation and was issued under Navy’s SeaPort indefinite-delivery, indefinite-quantity (IDIQ) contract. The USMC received two timely proposals in response to the RFP, which were subsequently evaluated. The agency assigned the protester’s technical proposal an overall rating of “acceptable” with a total evaluated price of approximately $35.5 million. Meanwhile, the awardee’s proposal received a technical rating of “outstanding” with an evaluated total price of approximately $54 million and was determined to represent the best value to the government. In its initial protest, the protester challenged the USMC’s evaluation of its technical proposal and argued that the agency had failed to adequately explain why the awardee’s proposal justified a 52% price premium.
In response, the agency decided to undertake voluntary corrective action, providing that it would reevaluate the technical proposals and again conduct a tradeoff analysis to issue a new source selection decision. Additionally, as part of the corrective action, the USMC decided to amend the solicitation to request revised price proposals and include a solicitation provision permitting the agency to conduct price realism analysis. Following the agency’s notice of intent to take voluntary corrective action, the protester filed a second protest challenging the scope of the agency’s proposed corrective action as overly broad. Specifically, the protester argued that it was unreasonable for the amended solicitation to include a price realism provision because the protester’s prior protest did not allege that USMC had failed to evaluate proposals for realism. The protester maintained that the agency’s corrective action could not be justified because there was no need to remedy a perceived defect that did not exist in the first place.
The USMC responded by stating that, upon reviewing the initial proposals, the contracting officer (CO) determined that amending the RFP to include a price realism provision was in the best interests of the government. In his statement, the CO expressed concern that some of the prices in the original proposals were so drastically low that they indicated the offeror’s failure to comprehend the complexity and risks associated with the contract requirements. The CO explained that any concerns with unrealistic pricing during the initial evaluation were mitigated by the agency’s selection of the initial awardee’s higher-rated, higher-priced proposal, which was priced in line with the agency’s independent cost estimate. However, since the reevaluation following the initial protest could result in the consideration of significantly lower-priced proposals for award, the agency took the position that it was essential to assess whether the pricing of such proposals was realistic. Therefore, USMC asserted that adding a price realism provision to the RFP as part of the agency’s corrective action was reasonable to address its identified concerns.
The GAO agreed with the agency, noting that the USMC had adequately explained that, given the significant spread between the proposed prices in the initial proposals, the CO believed that some of the prices reflected a failure to fully comprehend the complexity and risks associated with the solicited requirements. Furthermore, due to the fixed-price nature of the task order, it was reasonable for the agency to seek to avoid a scenario where the awardee is unable to fulfill the contract requirements at the awarded price. In this context, amending the RFP to include a price realism evaluation provision was appropriate, as it would allow the USMC to address the risks identified by the CO. The GAO also determined that, under the circumstances, including the price realism provision in the amended RFP was well within the agency’s discretion. Therefore, finding no basis to object to USMC’s proposed corrective action, the GAO denied the protest.
Protesters may challenge the scope of the procuring agency’s corrective action as overly broad or too narrow. During such protests, the GAO’s review is limited to whether the corrective action is appropriate under the circumstances to remedy the flaws identified by the agency in the procurement process. It is of no consequence whether the corrective action is aimed at remedying the flaws alleged in a prior protest if the GAO did not issue a decision on the merits of the protest due to the agency’s decision to take voluntary corrective action. Protesters should remember that agencies have wide discretion to take corrective action, and the details of the corrective action are typically within the sound discretion and judgment of the contracting agency. Consequently, protests challenging the scope of the agency’s proposed corrective action as overly broad are generally more difficult to sustain than protests alleging that the corrective actions were too restrictive. In this regard, if the corrective action is reasonably related to the documented flaw in the procurement process identified by the procuring agency, the GAO will not disturb the details of the agency’s corrective action, as they are squarely within the agency’s discretion.
This Bid Protest Insight is provided as a general summary of the applicable law in the practice area and does not constitute legal advice. Contractors wishing to learn more are encouraged to consult the TILLIT LAW PLLC Client Portal or Contact Us to determine how the law would apply in a specific situation.
