Oready, LLC v. Gao (2025)

Case details
Country
United States
Jurisdiction
Federal
Decided
2025
Disposition
Dismissed
441 G St. N.W. Washington, DC 20548 Comptroller General of the United States Decision Matter of: Oready, LLC File: B-423524.2 Date: August 13, 2025 Michael Farro, for the protester. William B. Blake, Esq., Department of the Interior, for the agency. Michael P. Grogan, Esq., and Evan D. Wesser, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST 1. Protest challenging the terms of the solicitation is dismissed as academic where the agency agreed to take corrective action, to include amending the solicitation. 2. Protester is advised, for a second time, that citation irregularities may result in the imposition of sanctions. DECISION Oready LLC, a small business of Las Vegas, Nevada, protests the terms of request for quotations (RFQ) No. 140A2325Q0137, issued by the Department of the Interior, Bureau of Indian Education (BIE), for school counselor services. The protester contends the solicitation is unduly restrictive of competition and contrary to law and regulation. We dismiss the protest. BACKGROUND The agency issued the solicitation on April 29, 2025, pursuant to the procedures of Federal Acquisition Regulation (FAR) part 12 (Acquisition of Commercial Products and Commercial Services) and subpart 13 (Simplified Acquisition Procedures). RFQ at 3.1 The solicitation contemplated the award of a single contract, with a 1-year base period of performance and four 1-year option periods. Id. BIE sought a school counselor to 1 All citations are to the corresponding electronic document page numbers.
Page 2 B-423524.2 support the Pine Ridge School in Pine Ridge, South Dakota. Id. at 32. The solicitation advised that award would be made to the most advantageous vendor, considering two factors: (1) technical; and (2) price. Id. at 20. The technical factor had two subfactors: (a) qualifications and capability; and (b) key personnel. Id. Prior to the May 9 due date for quotations, Oready filed a protest with our Office arguing that the solicitation is unduly restrictive of competition with respect to key personnel requirements. On June 4, 2025, the agency asked that our Office dismiss the protest as academic based on the agency’s proposed corrective action. BIE explained it “received no viable responses to the protested solicitation and, therefore, [the agency] intends to review its needs and issue a solicitation amendment or new solicitation reflecting the revised requirement.” Oready, LLC, B-423524, June 5, 2025 (unpublished decision) at 1 (dismissing the protest as academic, based on the agency’s proposed corrective action). BIE further explained its “review will include thorough consideration of each and every protest ground raised by Oready[,]” and that “[t]he revised solicitation will incorporate changes, if any, resulting from the Agency’s review of Oready’s protest allegations.” Id. The protester did not object to the agency’s proposed corrective action. Id. On or about June 17, the agency issued amendment 0001 to the RFQ. Protest, exh. 2, amend. 0001 at 1. BIE, through this amendment, changed the period of performance, requirements concerning key personnel, and the evaluation criteria. Id. at 1-2. On June 26, prior to the due date for quotations, Oready again filed a protest with our Office. The protester contends the agency’s evaluation criteria are contrary to law and regulation, the RFQ’s key personnel commitment requirement is unduly restrictive of competition, and the solicitation includes impermissible provisions regarding the agency’s vetting of vendors’ personnel. Protest at 1-4. DISCUSSION Request for Dismissal Based on Corrective Action On July 25, the agency notified our Office that BIE would undertake corrective action in response to Oready’s protest, and thus, asked that we dismiss the protest as academic on that basis.2 Req. for Dismissal, July 25, 2025, at 1. BIE explains that its corrective 2 On July 18, prior to its decision to take corrective action, the agency asked that our Office dismiss Oready’s protest because the protest allegations were either legally or factually insufficient, or that Oready could not demonstrate competitive prejudice. Req. for Dismissal, July 18, 2025, at 1-9 (hereinafter “Initial Req. for Dismissal”). On July 23, we explained that one of Oready’s allegations--that the RFQ’s evaluation criteria was contrary to law and regulation, where it provides for award using both a lowest-priced, technically acceptable (LPTA) source selection approach and a best-value tradeoff scheme--did not warrant further development, as Oready’s argument was legally and factually insufficient. GAO Resp. to Initial Req. for Dismissal at 1. We explained that (continued...)
Page 3 B-423524.2 action will include: amending the solicitation to remove the word “responsiveness” and replacing that word with a statement notifying offerors that a failure to comply with all response instructions may result in the removal of vendors from the competition; amending the solicitation’s key personnel requirements to clarify that no personal services are required; and amending the solicitation to incorporate other changes, if any, resulting from the agency’s review of the remaining protest allegations. Id. The protester objects to the agency’s proposed corrective action. First, Oready argues the agency’s corrective action does not address one of its protest allegations--that the requirement for contractors to submit signed commitment letters from non-employees, binding them to post-award availability for 120 days, is commercially unreasonable and restricts competition. Resp. to Req. for Dismissal at 2. Second, the protester argues BIE’s proposed corrective action is “vague”. Id. at 1. Third, Oready contends allowing BIE to take corrective action in the manner so proposed would constitute “procedural evasion” given that the agency previously undertook corrective action following an earlier protest. Id. at 2; see also Oready LLC, B-423524, June 5, 2025 (unpublished decision). Our office may dismiss protests as academic in any number of circumstances. The Jones/Hill Joint Venture--Recon., B-286194.2, Dec. 8, 2000, 2000 CPD 203 at 3. Of relevance here, we may dismiss a protest as academic where the corrective action, while not addressing some or all of the issues raised by the protester, appears appropriate based upon the particular circumstances of the acquisition and protest. Id. (citing Southern Techs., Inc.--Recon. and Costs, B-278030.3, Apr. 29, 1998, 98-1 CPD 125); see also Quotient, Inc., B-416473.4, B-416473.5, Mar. 12, 2019, 2019 CPD 106 at 3 (“An agency’s corrective action need not address every protest issue, but must render the protest academic.”). BIE’s proposed corrective action, here, meets this standard. The agency’s planned corrective action does, through anticipated solicitation amendments, explicitly address most of the allegations presented by Oready. While the proposed corrective action does not specifically address the protester’s allegation with respect to the required letters of commitment, the agency’s notice commits the agency to amending the solicitation’s key personnel requirements, and “[a]mending the solicitation to incorporate other changes, if any, resulting from the Agency’s review of the remaining protest allegations.” Req. for Dismissal at 1. Where the agency’s proposed corrective action our regulations provide that protests must set forth a detailed statement of the legal and factual grounds of protest, and that the grounds stated be legally sufficient. 4 C.F.R. §§ 21.1(c)(4) and (f). As applied, Oready’s protest allegation did not explain how the RFQ’s evaluation and award criteria--that called for making award on a LPTA basis--also included criteria that would require BIE to conduct a best-value tradeoff. As a result, we explained that we intended to dismiss this protest allegation. However, our Office explained that the remainder of Oready’s allegations were best addressed following the production of the agency’s report. GAO Resp. to Initial Req. for Dismissal at 1.
Page 4 B-423524.2 commits the agency to reviewing its requirements and amending the solicitation as appropriate, such a commitment is sufficient to render the protest academic. To the extent BIE’s implementation of corrective action fails to address any previously raised protest ground, Oready may, consistent with our Bid Protest Regulations, file a protest with our Office. Second, contrary to the protester’s assertion, BIE’s proposed corrective action is definitive enough to render the protest academic. As addressed above, the agency has committed to revising the solicitation to address several of Oready’s protest allegations, specifically, and will also take other remedial actions, as necessary. See id. at 1-2. Such conduct, which includes reviewing the agency’s requirements and amending the solicitation, is conclusive enough to render the protest academic.3 Third, the protester has not established that BIE’s corrective action is meant to evade the merits of the protest. As an initial matter, agency officials are presumed to act in good faith, and allegations of bias or bad faith must be supported by convincing proof, beyond mere inference and innuendo. Peraton Inc., B-416916.5, B-416916.7, Apr. 13, 2020, 2020 CPD 144 at 9. To the extent the protester argues otherwise, the protester has not established, and we find no basis to conclude, that BIE’s decision to take corrective action is motivated by bad faith. Moreover, contracting officials have broad discretion to take corrective action where the agency determines that such action is necessary to ensure a fair and impartial competition. Major Contracting Servs., Inc., B-400737.2, Dec. 17, 2008, 2008 CPD 230 at 2. In this regard, it is not necessary for an agency to conclude that the protest is certain to be sustained before it may take corrective action; rather, where the agency has reasonable concern that there were errors in the procurement, we view it as within the agency’s discretion to take corrective action. Main Bldg. Maintenance, Inc., B-279191.2, Aug. 5, 1998, 98-2 CPD 47 at 3. Here, our review of the record does not suggest BIE is undertaking a pattern of conduct to avoid addressing the protest. Resp. to Req. for Dismissal at 1. Instead, in the face of Oready’s initial protest (B-423524.1), the agency undertook corrective action (to which the protester did not object) to amend the solicitation where the agency did not receive responsive quotations. Similarly, here, BIE’s corrective action addresses some of Oready’s concerns through solicitation amendments, and agrees to review the other protest allegations, as well. Req. for Dismissal at 1. To the extent, as Oready suggests, that “the Agency could simply retain the challenged requirement, foreclosing Oready’s ability to compete fairly[,]” Oready may, consistent with our regulations file a protest with our Office, at that time. Resp. to Req. for Dismissal at 2. 3 To the extent a party objects to the scope of the agency’s corrective action, it must separately file a timely protest in accordance with our bid protest regulations.
Page 5 B-423524.2 In sum, we conclude the agency’s proposed corrective action renders the protest academic; we do not consider academic protests. Ferris Optical, B-403012.2, B-403012.3, Oct. 21, 2010, 2010 CPD 265 at 1-2. Inaccurate Legal Citations We also note this is the second instance in which Oready’s briefing has included inaccurate or fabricated legal citations. In its request for dismissal of the initial protest, counsel for BIE identified that three of Oready’s citations to decisions from our Office were either inaccurate or fictitious. Req. for Dismissal (B-423524) at 2. In our decision dismissing the protest, we explained: While we need not resolve whether the citations provided in the initial protest were accurate in light of the agency’s cancellation of the challenged solicitation, the protester is specifically advised that the submission of filings to our Office in future protests with citations to non-existent authority may result in the imposition of appropriate sanctions. See Raven Investigations & Security Consulting, LLC, B-423447, May 7, 2025, 2025 CPD 112. Oready LLC, B-423524, June 5, 2025 (unpublished decision). Here, again, the protester includes misleading citations or citations to non-existent decisions. For example, Oready’s protest cites to Total Health Resources, a potentially pertinent decision, but applies an inaccurate “B”-number (a “B” number refers to GAO’s bid protest file number), publication date, and CPD entry.4 Protest at 2. More concerning, in its response to the agency’s request for dismissal, Oready cites to “BluePath Labs, LLC, B-421791, Aug. 4, 2023.” Resp. to Req. for Dismissal at 1. However, this B-number refers to an unpublished decision of our Office involving a different party, in which we dismissed as academic a protest where the agency cancelled the underlying solicitation. Pitney Bowes, Inc., B-421791, July 31, 2023 (unpublished decision). Moreover, our decisions resolving protests brought by the firm BluePath Labs have no import to Oready’s protest, here.5 4 Oready provides the citation as “Total Health Res., B-414101, Feb. 21, 2017, 2017 CPD 64.”; the accurate citation is Total Health Resources, B-403209, Oct. 4, 2010, 2010 CPD 226 at 3. 5 BluePath Labs, LLC--Costs, B-417960.4, May 19, 2020, 2020 CPD 175 was a denial of the protester’s request for costs; BluePath Labs, LLC--Recon., B-417960.6, July 10, 2020, 2020 CPD 232 was a denial of a request for reconsideration concerning a request for a recommendation for reimbursement of costs; and BluePath Labs, LLC, B-417960.7, Oct. 26, 2020, 2020 CPD 352 concerned a past performance evaluation challenge. Nothing in these three decisions is remotely germane to the instant protest.
Page 6 B-423524.2 Similarly, the protester cites to “Sayres & Assocs. Corp., B-418374.3, July 20, 2020, 2020 CPD 242” as standing for the proposition that “[c]orrective action must be ‘adequate and reasonably certain to address the protest grounds’--not simply an agency statement that it will ‘review’ or ‘consider’ changes.” Resp. to Req. for Dismissal at 1. That B-number, publication date, and CPD log entry references no decision of this Office. While there is an actual decision issued by our Office entitled Sayres & Assocs. Corp., (B-418374, Mar. 30, 2020, 2020 CPD 115), the decision concerns a price realism challenge; our Office’s decision has no bearing on the instant protest and does not at all stand for the proposition suggested by the protester. In like fashion, the protester cites to “GTA Containers, Inc., B-411556, Sept. 16, 2015, 2015 CPD 281.” Resp. to Req. for Dismissal at 2. This B-number refers to an unpublished decision involving a different party, in which our Office dismissed as academic a protest challenging the evaluation of quotations where the agency cancelled the award and underlying solicitation. SSI Tech. Inc., B-411556, June 1, 2015 (unpublished decision). Moreover, the decisions from our Office resolving protests brought by the firm GTA Containers, Inc., have no relevance to the protest at hand, and they do not stand for the proposition the protester asserts.6 And finally, the protester cites to “Bannum Inc., B-416107.2, June 12, 2018, 2018 CPD 204.” Resp. to Req. for Dismissal at 2. Again, no such B-number exists, and none of the six decisions our Office has issued in response to protests brought by Bannum Inc., have any relevance to the instant protest, nor do they stand for the proposition Oready proclaims. Given the citation discrepancies identified above, our Office asked Oready to provide a response that addressed “the basis for the case citations” and to provide “copies of the cases cited in those responses[.]” Notice of Req. for Protester’s Resp., Aug. 4, 2025. The protester did not file a response by the deadline established by our Office, which was August 6. On August 7, the protester provided, via email, that it “did not receive the expected [Electronic Protest Docketing System (EPDS)] email notification and only discovered the notice [seeking the protester’s response] in the docket today, August 7, 2025, after the deadline had passed.” Email from Protester to GAO, Aug. 7, 2025; but see Dep’t of State--Reconsideration, B-415045.11, Dec. 3, 2018, 2018 CPD 401 at 3 (the act of filing a document in EPDS puts a protester on notice of the filing, even where the protester denied receipt of a separate email notification that the document had been filed). Our Office allowed the protester to file a response by August 8. 6 See GTA Containers, Inc., B-234395.3, July 12, 1989, 89-2 CPD 37 (denying a protest concerning a request to increase a bid price after bid opening); GTA Containers, Inc., B-240422, Nov. 14, 1990, 90-2 CPD 396 (dismissing a protest, on interested party grounds, related to the agency’s failure to include a small disadvantaged business preference clause in the solicitation)n; GTA Containers, Inc., B-249327, Nov. 3, 1992, 92-2 CPD 321 (denying protest concerning a nonresponsive bid).
Page 7 B-423524.2 The protester provides the following explanation: The research was conducted in-house by our small, non-attorney team using publicly available sources (e.g., GAO digests/abstracts and internal templates) under tight deadlines, without legal subscription databases. Errors arose from manual mismatches in secondary summaries. We have implemented peer-review, primary-source reliance, and gao.gov URL verification to prevent recurrence. Protester’s Resp., Aug. 8, 2025, at 1. The protester, “[i]n proactive good faith,” also included corrected versions of the decisions our Office identifies, above. Id. at 1-2. The protester’s response does not quell our Office’s concerns regarding the protester’s citations. As an initial matter, our Office draws no distinction between protests filed by those represented by counsel and protests filed by those not represented by counsel. In order to satisfy our statutory mandate to resolve protests expeditiously and to maintain our role as a meaningful, efficient protest forum, we expect all parties to prepare and present their cases carefully and diligently. Wolverton Prop. Mgmt., LLC--Recon., B-415295.4, June 6, 2018, 2018 CPD 205 at 3. Second, the protester’s explanation--that it was “manual mismatches in secondary summaries” that caused the citation errors (Protester’s Resp., Aug. 8, 2025, at 1)--does not meaningfully explain the number of citation errors in the protester’s filings. Indeed, Oready’s patently erroneous citations are far removed from mere typographical or scrivener’s errors, and instead, bear the hallmarks of the use of a large-language model or other artificial intelligence (AI) without adequate verification that the generated results were accurate. See, e.g., Powhatan Cnty. Sch. Bd. v. Skinger, No. 3:24cv874, 2025 U.S. Dist. LEXIS 104564 at *21 (E.D. Va. June 2, 2025) (“The issue of AI programs populating and citing to fake or nonexistant legal authority, what has become known as AI ‘hallucinations,’ is an issue for courts that is becoming far too common.”); Versant Funding LLC v. Teras Breakbulk Ocean Navigation Enters., LLC, No. 17-cv-81140, 2025 U.S. Dist. LEXIS 98418 at *11 (S.D. Fl. May 20, 2025) (explaining that “there is nothing inherently wrong with an attorney properly and competently utilizing AI or any of its subsets to practice law or litigate cases,” but noting that “the evolving technology has many glitches (including hallucinations) and does not always work properly or as expected,” and “[t]his is why close and careful attorney supervision, fact-checking and citation-checking are absolute necessities when utilizing AI or any of its subsets”). The protester’s conduct undermines the proper functioning of this forum, as fictious or otherwise erroneous case citations have a deleterious effect on our Office’s ability to promptly resolve bid protests and waste the time and resources of the parties and our forum. As we explained in Raven Investigations, our Office necessarily reserves an inherent right to dismiss any protest and to impose sanctions against a protester, where a protester’s actions undermine the integrity and effectiveness of our process. Raven Investigations, supra at 4. Because, as discussed above, we dismiss this protest as
Page 8 B-423524.2 academic, we do not exercise that right here. The protester is again advised such further conduct may result in sanctions. The protest is dismissed. Edda Emmanuelli Perez General Counsel
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