Government Contracts Corrective Action Was Inadequately Documented
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Wednesday, May 8, 2019

Corrective Action Was Inadequately Documented

By Government Contracts Editorial Staff

Corrective action was unreasonable because the government did not adequately document the basis for its decisions. The protester was the initial awardee of a contract for systems engineering and technical assistance support. After another offeror challenged the award based on the protester’s failure to hold a top-secret facility clearance at the time of proposal submission, the government announced it would take corrective action by terminating the awardee’s contract and awarding a new contract to the other offeror. The Comptroller General then dismissed the initial protest as academic. In response to the subsequent protest, the government broadly claimed the protester was ineligible to compete for the award and the corrective action was reasonable.

Two Documents. The government’s corrective action was reflected in two documents. The first was an internal email from a division chief stating “[a]t this point we feel taking corrective action is our only path forward as the facility clearance solicitation requirement was not met by the awardee” and “[w]e wanted to get your concurrence on our path forward before legal submits the corrective action plan ….” The other was the notice of corrective action stating the government would terminate the protester’s contract for convenience and make a new award to the other offeror. Since the record contained little documentation concerning the government’s determination, the CG asked the government to supplement the record with “any other emails, memoranda, or other documents relating to the [government’s] conclusion that ‘the facility clearance solicitation requirement was not met by the awardee.’” The government “confirm[ed] that the record [was] complete and that there [were] no additional documents ….”

No Determination. The CG sustained the protester’s challenge, finding nothing in the record reflected the government’s apparent determination that award should no longer be made to the protester. The government provided no clear interpretation of the facilities clearance provision, and it did not explain how the provision applied to the protester’s proposal. The government claimed that it would “not reevaluate proposals,” but it appeared that it reevaluated the facility clearance in the protester’s proposal without documenting any findings. Finally, although the government maintained that it “determined [the protester] was not actually eligible to compete” for the procurement, it produced no document containing such an analysis. The CG recommended the government document the basis for its decision to reject the protester’s proposal. (NavQSys, LLC, 34 CGEN ¶116,352)

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