About a third of U.S. Government Accountability Office (“GAO”) protests end because an agency decides to take voluntary corrective action. (This is evidenced by the ~30 percent difference between GAO’s “Sustain” rate and “Effectiveness” rate.) While it is considered a “win,” voluntary corrective action can be frustrating for protesters who may have no assurance their concerns will truly be addressed. Agencies often say little about what the corrective action will entail. When they do discuss specific steps to be taken, agencies often list various actions they may or may not take, depending on further assessment as the corrective action unfolds. Historically, GAO has largely brushed aside complaints about these uncertainties. When an agency announces its intent to take corrective action, the perfunctory next step has been a quick dismissal of the protest.
In a recent decision, however, GAO signaled a willingness to demand more from agencies seeking a dismissal based on corrective action.
In Mythics, Inc.; Oracle America, Inc., B-418785, et al., Sep. 9, 2020, GAO sustained two preaward protests arguing that a Library of Congress solicitation was unduly restrictive of competition. While many aspects of the decision are noteworthy, most striking is its discussion regarding the agency’s difficulty convincing GAO to dismiss the protest as academic based on intended corrective action.
In June, the agency asked GAO to dismiss both protests as academic because it was undertaking corrective action. The agency explained that while it had not determined “the precise corrective action to be taken,” it would be revising the solicitation in some manner before making any award. See id. at 3–4. That was not good enough for GAO. In response to GAO’s demand for more information, the agency next submitted a letter that described its intended corrective action in greater detail. That was not good enough for GAO either. GAO found that, despite the additional information, “the proposed corrective action either was too vague to provide a basis for dismissal, or . . . failed to address one or more of the protest allegations.” On that basis, GAO declined to dismiss the protests. Id. at 5.
The agency then abandoned the dismissal effort, and instead filed a response to the protests on the merits. This defense also failed, in part because, once again, the agency—apparently recognizing the difficulty of defending its actions based solely on the existing solicitation—made vague and ambiguous statements about how it might modify the solicitation to complete the procurement. In sustaining the protests, GAO made clear that its merits decision had to be based on the existing solicitation, and not on how the agency might (or might not) subsequently change it.
The Mythics/Oracle decision provides useful ammunition for protesters who are unsatisfied with proposed corrective action. If GAO continues to follow the approach of this decision, protesters should be entitled to some specificity about what the correction action will entail and/or some assurance that all protest grounds will be addressed.
