The agency took corrective action following an outcome prediction conference and said it would conduct limited discussions. The protester challenged the adequacy of discussions during the corrective action. GAO, however, found that the protest was premature. The agency had indicated in both the notice of corrective action and in response to offeror questions that it may conduct additional rounds of discussions. Because there was a possibility of additional discussions, GAO declined to consider, at this point, whether the discussions were adequate.
ManTech Advanced Systems International, Inc., GAO B-420509.7
Background
GSA issued a task order request (TOR) to holders of the One Acquisition Solution for Integrated Services Contract. The TOR sought systems engineering services for the US Space Force.
Three offerors, including Booz Allen Hamilton and ManTech Advanced Systems, submitted proposals. GSA awarded the contract to Booz Allen. ManTech protested, alleging Booz Allen had an OCI and deficient letters of intent from subcontractors. GAO held an outcome prediction conference and advised that it would likely sustain some of ManTech’s protests.
GSA then took corrective action, stating it would further investigate the OCI and conduct limited discussion on the letters of intent. The notice of corrective action also stated GSA reserved the right to take other actions if necessary.
During the corrective action, GSA amended the TOR and allowed offerors to submit revised proposals. Prior to the deadline for revised proposals, ManTech filed another protest, challenging the adequacy of discussions during the corrective action.
Analysis
When a protester challenges the adequacy of discussions during a corrective action, GAO treats the protest as a “ground rules” protest analogous to a pre-award protest challenging the terms of a solicitation. A “ground rules” protest must be filed within ten days of when the protester learns of the grounds rules. But when the agency leaves open the possibility of additional discussions, a pre-award “ground rules” protest will be premature. The protester must wait until after award.
Here, GSA argued that ManTech’s protest was an untimely ground rules protest, because the agency had advised in the notice of corrective action that it intended to conduct limited discussions. Thus, GSA reasoned, MatTech should have filed within ten days of the notice of corrective action.
But GAO disagreed with this analysis. The notice of corrective action stated that GSA may take other necessary actions, leaving open the possibility of further corrective action. Moreover, in response to offeror questions, GSA reserved the right to conduct further discussions. Because there was still the possibility of additional corrective action, ManTech’s protest was not too late. Rather, it was premature. ManTech needed to wait until GSA had unequivocally indicated the corrective action was done, or made award.
ManTech is represented by Scott F. Lane, Katherine S. Nucci, and Jayna Marie Rust of Thompson Coburn LLP. The intervenor, Booz Allen Hamilton, is represented by Kristen E. Ittig, Charles A. Blanchard, Sonia Tabriz, Amanda J. Sherwood, and Nicole Wiliamson of Arnold & Porter Kaye Scholer LLP. The agency is represented by Torrie N. Harris and Neeraj Kumar of the General Services Administration. GAO attorneys David A. Edelstein and Alexander O. Levine participated in the preparation of the decision.
–Case summary by Craig LaChance, Senior Editor