"First Impression" Ruling: Court May Review the Rationality of Emails Sent By GAO Attorneys

http://ow.ly/6E5zy

Article written by Townsend L. Bourne appearing on natlawreview.com website.

This case addresses a case of first impression involving review of emails.  The author states, "
In Systems Application & Technologies, Inc. v. United States, No. 11-280C (Fed. Cl. August 25, 2011), the Court of Federal Claims addressed an “issue of first impression” – whether the court can review an email message from a Government Accountability Office (“GAO”) attorney in the same way that it reviews a formal GAO decision. In this instance, the court determined that the answer was "Yes.”"

A GAO attorney had sent an advisory email in this matter, and corrective action was taken based on that email, this fact had influence in the court's decision to review the email.  "In this case, because there was no formal GAO decision, and citing its “broad mandate to entertain bid protests and review government procurement decisions,” the court held that it could review the email from the GAO attorney in order to determine its rationality. It could review the email, however, “only because the Army relied upon the message” when deciding to take corrective action."

Of additional interesting note, "The court found that conclusions contained in the GAO attorney’s email regarding the timeliness of the initial protest and alleged deficiencies in the source selection decision were irrational and, thus, the Agency’s decision to take corrective action lacked a rational basis. In the alternative, the court held that the Agency’s corrective action decision was irrational even if it was not based on the email from the GAO attorney. This was true because the court determined that “the source selection decision was a rational exercise of the Army’s discretion” and so taking action to correct the source selection decision was unreasonable. Hence, apart from its “first impression” ruling, the Systems Application decision also is noteworthy due to the fact that the court has sustained challenges to proposed Agency corrective action in only a handful of cases over the past ten years."