Sometime in the next month, we’ll receive the annual report on the number of bid protests filed against federal agencies, and if the trendline continues, there will have been more protests filed in fiscal 2016 than in previous years. And while the number has been increasing, the percentage of those sustained has declined, with 2015’s sustain rate of 12% the lowest in the last five years.
My guess would be we’ll see a similar decline in 2016. I have the great joy of watching the published findings from the Government Accountability Office and the Federal Court of Claims, and anecdotally, sustained protests appear to be fewer and farther between. What’s interesting to me, though, is that in the last week, GAO has agreed with two different companies seeking cost reimbursements for the expenses associated with their bid protests. In both cases, the agencies issued corrective action that rendered the protests “academic,” but then failed in implementing that corrective action.
In the case of Shertech Pharmacy Piedmont, LLC, a woman-owned small business, the Department of Veterans Affairs (VA) pre-empted their protest by saying it would take corrective action, so GAO dismissed the protest as academic. And while GAO said not all of Shertech’s objections were “clearly meritorious,” some were, and the VA “unduly delayed” its corrective action. Here’s the important part of the decision:
The VA, however, delayed taking corrective action, filing an agency report on November 9 and then filing a supplemental agency report on December 2. The VA did not take corrective action until December 4, doing so only after our Office requested the agency provide justification for its withholding of requested documents. As a result, we find that the agency’s corrective action was unduly delayed.
And in what is perhaps a more blatant example of delaying action, GAO awarded costs to ANAMAR Environmental Consulting, Inc., after it had to file three successive protests of an Army Corps of Engineers contract. ANAMAR protested the award to competitor Water & Air Research (WAR), alleging the latter had not provided proper past performance. The Corps issued a notice of corrective action, and then later re-awarded the contract to WAR. ANAMAR argued the Corps’ corrective action didn’t actually address the underlying issue and filed a second protest, to which the Corps issued another notice of corrective action. The Corps then awarded the contract again to WAR, and AGAIN ANAMAR filed a protest, alleging WAR had “failed to provide past performance information for all relevant contracts and subcontracts started or completed within the past 10 years in violation of the terms of the RFP,” and had “misrepresented” its past performance.
The result? The Corps canceled the award and solicitation and said it would “re-solicit the requirement based on the agency’s current needs.”
Needless to say, GAO recommended ANAMAR be reimbursed for its costs. The Corps should also reimburse any costs related to heartburn medicine, as well.