Award Not Voided Pending Corrective Action, Protest Untimely

A protest seeking implementation of a Competition in Contracting Act automatic stay of contract performance was denied by the Court of Federal Claims because the protester did not show it was likely to succeed on the merits of the timeliness of its Government Accountability Office protest or that it would suffer irreparable injury pending a new source selection decision. The task order for information technology services was awarded in February. GAO dismissed the protester’s initial protest, filed March 5, after the government indicated it would take corrective action to remedy evaluation flaws unrelated to the protest grounds. The protester filed a second GAO protest on May 9, contending the government made an award on May 2, when the contracting officer notified the incumbent that, in view of GAO’s dismissal of the initial protest, the stay had been lifted and the government intended to proceed with the award. The government refused to stay performance, contending the award was made on February 27, and the May 9 protest was untimely.

When the Clock Started

In arguing the award date was May 2, the protester noted GAO dismissed the initial protest on the understanding the government would issue a new source selection decision. According to the protester, GAO determined “there [was] no final decision … to review” because GAO understood the government would promptly void the award. However, GAO only has the authority to recommend government action, and its dismissal of the initial protest did not void the award. The court observed GAO has endorsed allowing the government to proceed with an award on a temporary basis, pending corrective action ( 25 CGEN ¶113,108 ; 16 CGEN ¶111,047). Here, after the protest was dismissed and the stay lifted, the award remained available for the government to use as an interim vehicle for obtaining performance pending correction of the initial award. “In the absence of any cancellation of the award, the clock for purposes of [the automatic stay provision under 31 USC 3553(d)(3)] started in February,” and the May 9 protest was not filed within the 10-day window provided by Section 3553(d)(4). In addition, the government stated it intended to issue a new award decision by the end of the month, and the protester did not establish a two-week continuation of performance by the awardee would cause it irreparable injury. ( Solutions by Design Alliant JV, LLC v. U.S., et al., FedCl, 57 CCF ¶80,088)