Contractor Loses Bid Protest Where Agency Incrementally Corrects Its Mistakes With Great Reluctance; Ask the Bid Protest Attorney

A government agency took corrective action in a series of incremental steps over the course of many months to address a contractor’s pre-award bid protests. (“Corrective action” means that the agency fixes the problems of which the protester complains). However, dragging its feet more so much that the Court of Federal Claims called the actions “tortuous and torpid, and [occurring] on an incremental basis only when driven by necessity or the threat of an adverse result,” the Court nonetheless held that the ultimate sum of its actions removed any prejudice to the contractor and dismissed its bid protest. While of little consolation to the contractor, the agency’s reputation is clearly sullied. This may hurt the agency, the Army Corps of Engineers, in future visits to the Court.

The case was dismissed as “moot.”

This incremental “foot dragging” is relatively rare in the Court of Federal Claims, but is common in protests filed at the GAO. As a result, some lawyers frequently recommend bypassing the GAO and filing bid protests directly in the Court of Federal Claims. This case, however, proves that that strategy does have exceptions.