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1. FED GOV CON
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2020 Series
JSchaus & Associates
Washington DC
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8. Bid Protest Corrective Action
– What It Means And How
To Get It
Wednesday,
March 4, 2020

9. Corrective action refers to an agency going back and re-conducting all or some aspects
of a procurement in response to a bid protest.
It is triggered in one of three ways:
- Voluntarily, before any decision or recommendation issued by GAO or the Court
- In response to a decision sustaining all or part of a protest
- In response to GAO outcome prediction or other indication from GAO or the Court that
a sustained decision is likely.
2020 – Fed Gov Con Webinar Series - Washington DC
JSchaus & Associates

10. An agency’s corrective action may involve a re-evaluation of proposals, a new round of
discussions, an amendment to a solicitation, or other actions.
GAO and the Court of Federal Claims will typically dismiss a protest if an agency takes
corrective action that “moots the protest,” meaning that it resolves the protest
arguments or provides the relief sought by the protester.
2020 – Fed Gov Con Webinar Series - Washington DC
JSchaus & Associates

11. Voluntary corrective action can occur at any time during a protest, but there are several
windows in the 100-day timeline when agencies are most likely to notify GAO that they
have decided to take corrective action voluntarily:
- in the first week or two after the protest is filed;
- shortly before the agency report is due to GAO, which is 30 days after the protest was
filed;
- and later in the 100 days (commonly after supplemental protests are filed or when
GAO has either asked for a hearing or held outcome prediction)
2020 – Fed Gov Con Webinar Series - Washington DC
JSchaus & Associates

12. In taking corrective action, the agency can elect to take any action that seeks to cure the
defect identified in the protest. In practicality, corrective action almost always involves
either:
- Re-evaluating existing proposals and making a new award decision (exclude ineligible
offerors and proposals if necessary);
- Conducting discussions, evaluating revised proposals, making a new award decision;
- Amending the solicitation, soliciting revised proposals, conducting new evaluation and
making a new award decision.
2020 – Fed Gov Con Webinar Series - Washington DC
JSchaus & Associates

13. Agencies are generally permitted to take ANY action that will moot the protest. This is
not always the action the protester wants or has in mind.
For example, if a protester argues that the awardee’s proposal was deficient and should
have been excluded from consideration for award, the agency could take corrective
action excluding the awardee and selecting the next-in-line offeror.
But it could also re-open discussions and allow the awardee to correct its answer. It
could even amend the solicitation to change the requirement and re-solicit proposals.
2020 – Fed Gov Con Webinar Series - Washington DC
JSchaus & Associates

14. There are many reasons to intervene in a protest, but one of the best ones is to work to
influence the agency not to take corrective action.
Remember, the sustain rate is much lower than the corrective action rate, so doing this
increases the intervenor’s chance of keeping their award.
How?
- Early contact with agency counsel (by attorney) to discuss requests for dismissal or
ways to limit production of the record and offer to assist with research or drafting
- Company can assist by providing substantive responses to protest allegations.
2020 – Fed Gov Con Webinar Series - Washington DC
JSchaus & Associates

15. What’s next after corrective action?
- Clarify the scope, get as much detail as possible about the agency’s intended course of
action
- Ensure that it addresses all protest grounds
- For intervenors: argue for release of offerors’ prices and ratings?
- Assess strategic position based on scope of corrective action
- In some situations, there is little to do but wait (when the corrective action is just a
reevaluation, for example)
- When you have the opportunity to revise is where there are many strategic
considerations
Timing? Who knows!
2020 – Fed Gov Con Webinar Series - Washington DC
JSchaus & Associates

16. THANK YOU!
JSchaus & Associates
Washington DC
hello@JenniferSchaus.com
www.JenniferSchaus.com
+ 1 – 2 0 2 – 3 6 5 – 0 5 9 8
Elizabeth Jochum
ejochum@smithpachter.com
(703) 839-8135