When Do You Protest Corrective Action? When It’s Announced or When It Results in an Adverse Determination?

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Following an initial protest, the agency took corrective action to consider additional information from an offeror. After considering the information, the agency awarded the contract to that offeror. The protester challenged the award, arguing the agency improperly considered additional information. GAO, however, found the protest untimely. The agency notified the protester that it would consider the additional information when it announced the corrective action. If the protester objected, it should have filed a protest within 10 days of the corrective action, not after a new award.

Shimmick Construction Company, Inc., GAO B-410072.3

Background

The Army Corps of Engineers posted an invitation for bids seeking drainage improvements. Michels Corporation submitted the lowest bid. The Corps, however, determined that Michels had not satisfied a definitive responsibility criterion. Accordingly, the Corps made award to Shimmick Construction, the next lowest bidder.

Michels filed a GAO protest, alleging that it satisfied all the responsibility criteria. In response to the protest, the Corps took corrective action to consider additional information from Michels. GAO dismissed the protest as academic. 

Michels submitted additional information, which must have been persuasive. The Corps terminated Shimmick’s contract and made award to Michels. Shimmick protested.

Legal Analysis

Shimmick argued the Corps improperly considered additional information from Michels after making the award to Shimmick. But GAO found this was an untimely challenge to the Corps’ corrective action

A protest challenging a corrective action must be raised within 10 days of when the scope of the intended action is known. Here, the Corps made clear when it announced the corrective action that it was going to consider additional information from Michels. If Shmmick thought the proposed corrective action was improper, it should have filed a protest within ten days of the announcement. It could not wait to protest the impropriety after the agency implemented the corrective action.

Shimnick is represented by Giovanni Ruscitti of Berg Hill Greenleaf & Ruscitti LLP. The intervenor, Michels Corporation, is represented by Casey McKinnion and Michael H. Payne of Cohen Seglias Pallas Greenhall & Furman PC. The agency is represented by Amanda R. Fuller, Alexandria P. Tramel, Maryann Blouin, and Jeremy Weber of the Army. GAO attorneys Christopher An and Edward Goldstein participated in the preparation of the decision.

GAO - Shimmick Construction Company