When Corrective Action May Be as Good as a Contract Award

Dan Gordon, Associate Dean for Government Procurement Law Studies at the George Washington University Law School, former Administrator of the Office of Federal Procurement Policy and, before that, Acting General Counsel at the Government Accountability Office (“GAO”), is universally respected for the quality of his scholarship, which always includes exhaustive research. (Full disclosure: I was Dean Gordon’s “associate mentor” when he first started at Fried Frank in 1987). Thus, even though he concedes in a recently published article — “Bid Protests: The Costs are Real, but the Benefits Outweigh Them,” 42 PUB. CONT. L.J. 489 (2013) — that there is “no publicly available information on that large universe of protests where the GAO was told that the protester ‘obtain[ed] some form of relief,'” that there is “no way to know whether the protesters ultimately obtained the contracts at issue,” and that discovering the outcome in each of the affected procurements “would challenge the most diligent researchers because … the GAO does not publicly disclose any information about the cases that it closes due to agencies’ voluntary corrective action,” id. at 500-01, it is surprising that he is so skeptical about the ultimate value of corrective action for many protesters. See id. at 501.

Specifically, Dean Gordon’s research methodology, though well-intended, neglected, surely because it could not research, an entire group of outcomes that I, and surely a good number of other government contracts practitioners, have achieved for clients: corrective actions that resulted in the protester obtaining at least a significant piece of the contract, whether as one of several awardees under a multiple-award RFP, or as a subcontractor, receiving 40-45% of the work in a negotiated settlement with the awardee. In the latter cases, the agency often encouraged the awardee, and the awardee accepted because it did not want to risk losing the entire award in a protest decision. In each of the instances, the agency either rewarded my client or encouraged a settlement because — I surmise — it did not want an adverse published decision. To be sure, these outcomes have been the exception, not the rule, but there are hundreds, if not thousands, of other protest attorneys besides me, and I would think that many of them have had some similar experiences. Thus, although, as Dean Gordon asserts, there may be “no obvious reason” why a protester would gain a benefit from filing a protest that did not result in a decision sustaining the protest, my experience, and surely that of numerous other government contracts lawyers, demonstrates that the likelihood of obtaining substantial, albeit not necessarily complete, success in filing a protest is substantially greater than the author found.

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