This article is an excerpt from The Art of Tendering: A Global Due Diligence Guide, which is available for purchase.
In its March 2019 determination in NavQSys, LLC, the U.S. Government Accountability Office (GAO) ordered a re-evaluation after deciding that a lack of records nullified a government’s decision to take corrective action and revoke a contract award. The dispute dealt with a Request for Proposals (RFP) issued by the Department of the Army for systems engineering and technical assistance support. While the GAO confirmed that the government was within its rights to take corrective action to address flaws in its evaluation and award processes, it also confirmed that any corrective actions must be properly documented to provide evidence of due process:
DISCUSSION
NavQSys argues that the agency’s intended corrective action is unreasonable and inadequately documented. Based on alleged conversations between NavQSys and the Army after the dismissal of Semper Valens’ protest, NavQSys explains that the Army determined that NavQSys was ineligible for award because the joint venture did not hold its own facility clearance.
The Army does not address these alleged conversations, but broadly claims that NavQSys was ineligible to compete for the solicitation and thus its corrective action was reasonable.
As a general matter, the details of a corrective action are within the sound discretion and judgment of the contracting agency. Jacobs Tech., Inc., B-416314, B-416314.2, July 31, 2018, 2018 CPD 271 at 4; Rockwell Elec. Commerce Corp., B-286201.6, Aug. 30, 2001, 2001 CPD 162 at 4. In general, we will not object to the specific corrective action, so long as it is appropriate to remedy the concern that caused the agency to take corrective action. Networks Elec. Corp., B-290666.3, Sept. 30, 2002, 2002 CPD ¶ 173 at 3. Where the agency has reasonable concern that there were errors in the procurement, it is within the agency’s discretion to take corrective action where the agency made the decision in good faith. Jacobs Tech.
While we will not substitute our judgment for that of the agency, we will sustain a protest where the agency’s conclusions are inconsistent with the solicitation’s evaluation criteria, undocumented, or not reasonably based. See Ekagra Software Techs., Ltd., B-415978.3, B-418975.4, Oct. 25, 2018, 2018 CPD 377 at 5. Where an agency fails to document or retain evaluation materials, it bears the risk that there may not be adequate supporting rationale in the record for us to conclude that the agency had a reasonable basis for its evaluation conclusions. Id.; see also Navistar Def., LLC, BAE Sys., Tactical Vehicle Sys. LP, B-401865 et al., Dec. 14, 2009, 2009 CPD 258 at 13.
In this case, the GAO found that the government failed to meet these due process standards since it did not maintain a proper reviewable record of its corrective action decisions:
Here, nothing in the record reflects the agency’s apparent determination that award should no longer be made to NavQSys. The agency provided no clear interpretation of the facilities clearance provision nor explained how it applied to NavQSys’ proposal. See, e.g., COS/MOL at 8-9 (statement of facts describes no agency determination that NavQSys was ineligible to bid on the solicitation or that its proposal failed to comply with a material solicitation provision). Although the Army claimed that it “will not re-evaluate proposals,” the agency appears to have re-evaluated the facility clearance contained in NavQSys’ proposal–without documenting any findings. Id. at 14. While the Army maintains that it “determined that NavQSys was not actually eligible to compete” for this procurement, it produced no document containing such analysis. Id.; EPDS Docket Entry No. 27.
Because the corrective action reflects a re-evaluation of NavQSys, which was not documented, we cannot conclude that the agency had a reasonable basis for its corrective action.4 Accordingly, we sustain the protest.
As this case illustrates, while government institutions may be within their rights to conduct re-evaluations to address irregularities that are discovered after their initial evaluations, any such re-evaluations must be conducted in accordance with the principles of proper record-keeping in order to maintain a reviewable record of the entire evaluation process. The failure to maintain records in any part of the evaluation process can compromise the defensibility of any resulting evaluation and award decisions.
