Protest challenging the agency’s corrective action is dismissed in part, where GAO lacked jurisdiction to determine whether the agency properly implemented the statutory stay of performance, and denied in part where the agency’s corrective action reasonable focused on the unperformed work; request for reimbursement of protests costs is denied, where the protester’s challenges were not clearly meritorious.
GovSmart Inc. challenged the Navy’s corrective action in response to its prior post-award protest and requested reimbursement of costs for pursuing the protests.
GovSmart specifically challenged the scope of the agency’s corrective action for a software and firmware annual maintenance and license renewal purchase order. GovSmart argued the agency acted unreasonably by cancelling just one line item under the purchase order instead of stopping all orders for continuing services and suspending contract performance. GovSmart also argued that the firm awarded the procurement should have immediately stopped or discontinued any work order upon receipt of its protest and that it should be reimbursed the costs of filing the protests because the agency delayed staying contract performance.
According to the Navy, a purchase order was issued under the awarded contract hours before GovSmart filed its post-award protest at GAO. The agency explained that within those hours, most of the work required under the first order was complete due to the quick electronic processing of work. The agency also stated that following the holiday weekend after the protest was filed, it formally instructed the awardee to suspend performance on items of the order that had not been completed. At that time, however, there was only one remaining item that had not been completed.
GAO dismissed this challenge, determining that it lacked jurisdiction to review whether the Navy properly implemented the statutory stay of performance required by CICA. GAO noted that an agency’s failure to adhere to the stay requirement is not a valid basis for protest.
As to the challenge to its corrective action, the Navy maintained that it took the corrective action that was available: terminating the unperformed line item. The agency also explained that to cancel and reverse the work performed, even if possible, would have resulted in significant penalties.
GAO denied this challenge, finding that the protester’s preferred recourse – i.e. the agency reversing the completed work and conducting a new competition – was simply impractical. GAO stated that there was nothing objectionable about the agency’s decision to focus on the unperformed portion of the purchase order and that the protester’s preferred corrective action would likely waste taxpayer dollars.
The Navy also maintained that it did not unduly delay its corrective action it the face of a clearly meritorious protest because it elected to take corrective action in lieu of filing an agency report. GAO agree and denied the request for reimbursement of costs.
GAO determined that to the extent the protester was requesting costs stemming from the alleged violation of the statutory stay of performance, such challenges were not for its consideration. GAO also determined that regardless of the timing of the agency’s corrective action, GovSmart’s protests were not clearly meritorious. In this regard, GAO noted that it was still unclear whether GovSmart even had valid bases of protest in its initial protest.
GovSmart Inc. is represented by Jerry A. Miles and Lan Jin of Deale Services LLC. The government is represented by Christine M. Choi and Eric D. Flores, Department of the Navy. GAO attorneys Noah B. Bleicher and Peter H. Tran participated in the preparation of the decision.