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  • Question

    If a government agency chooses to take corrective action in exchange for GAO's dismissing the bid protest, how long must the government agency complete the corrective action? GAO's bid protest is normally decided within 100 days, but can government agencies take as long as they want to take corrective action in exchange of dropping the bid protest by GAO? Anything in the FAR that talks about the deadline a government agency must abide by to take corrective action in bid protests on its end?


    Answer

    When a protest has been dismissed because the Government advises that it intends to take corrective action, the original protester may subsequently seek reimbursement of costs if the government has unduly delayed implementation of the proposed corrective action.  The GAO has decided such cases pursuant to authority in the Competition in Contracting Act of 1984 and its implementing regulations at 4 CFR section 21.8(e).   

    However, you are not asking about procedural steps, instead you appear to be asking what length of time constitutes undue delay. 
    The regulations do not address this because it is a determination dependent on the individual facts in each individual case.  For example, the GAO found that it was not undue delay when the government took more than a year to begin implementation of corrective action in Re: AdaRose Inc. – Protests and Costs, B-299091.2, January 14, 2008.  In deciding that the government did not unduly delay implementation of corrective action the GAO pointed to such factors as:  the fact that the government took incremental steps towards implementation of corrective action, the delay from significant illness of a key team member, changes in acquisition priorities caused by war efforts, and the inherent difficulty in correcting a flawed solicitation that implements a new acquisition strategy that combines multiple requirements for the first time.  

     
    On the other hand in Re: Sabel Systems Technology Solutions, LLC—Costs, B-410537.3: Aug 12, 2015, the GAO found that the Government’s failure to implement corrective action within 47 days constituted undue delay.  In that case the Government failed to make reasonable inquiry into the merits of the protester’s allegation that the proposal of the winning offeror was flawed.

    Clearly the question of whether the Government’s progress in implementing corrective action is sufficiently prompt is a question entirely dependent on the facts in your individual case. 
    For legal advice on your specific situation, we encourage you to consult with your attorney. 


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