There are three forums that hear bid protests – the agency conducting the procurement, the U.S. Government Accountability Office (GAO), and the U.S. Court of Federal Claims (COFC). Click here for further information on where to file. Here we will discuss agency level bid protests, some procedural considerations, and a few of the advantages of using this forum over the GAO or the COFC. Dunlap Bennett & Ludwig’s team of bid protest attorneys are highly experienced, and are ready to advocate on your behalf.
Agencies were granted authority to hear bid protests on October 25, 1995, when then-President Bill Clinton signed Executive Order No. 12,979 “to ensure the effective and efficient expenditure of public funds and fair and expeditious resolution of protests to the award of Federal procurement contracts.” In a nutshell, agency level protests provide for inexpensive, informal, procedurally simple, and
an expeditious resolution of protests. Agency level protests were also designed to reduce protests outside the agency, i.e., to the GAO and the COFC. Executive Order No. 12,979 is implemented through Federal Acquisition Regulation (FAR) 33.103.
FAR 33.103 provides the roadmap for the protest requirements and the agency’s response. Numerous agencies also have their own agency-specific FAR supplements. A good rule of thumb is, in addition to the FAR, to also check those supplements regarding any protest requirements.
The Contents of the Protest
Explained in the most basic of terms, an agency level protest is an informal letter explaining the grounds of protest and demonstrating the protester is prejudiced by the agency’s actions. To meet these basic requirements, the FAR states an agency level bid protest must be addressed to the contracting officer or the official designated to receive protests. Even if the protest is filed with the contracting officer, the protester may request an independent review at a level above the contracting officer.
FAR 33.103(d) further requires the protest to be concise and logically presented and include the following requirements, the failure to include any of the of which may be grounds for dismissal:
- Name, address, and fax and telephone numbers of the protester,
- Solicitation or contract number,
- Detailed statement of the legal and factual grounds for the protest, to include a description of resulting prejudice to the protester,
- Copies of relevant documents,
- Request for a ruling by the agency,
- Statement as to the form of relief requested,
- All information establishing that the protester is an interested party for the purpose of filing a protest,
- All information establishing the timeliness of the protest.
When Must the Protest be Filed
You must pay careful attention to the timing of triggering events that signal when the protest must be filed.
For pre-award protests:
- Challenges to improprieties in the solicitation must be filed prior to the bid opening or the closing due date and time set for receipt of proposals or quotations,
- In those instances where a solicitation defect is not apparent before those times, a protest must be filed no later than ten (10) days after the defect becomes apparent,
- Challenges to exclusion from the competition must be filed no later than ten (10) days after the basis of the protest is known or should have been known, whichever is earlier (meaning within ten (10) days of learning of exclusion or within ten (10) days of a pre-award debriefing).
For post-award protests:
- Protests must be filed with the agency within ten (10) days of when the protester knew or should have known the basis of protest, whichever is earlier.
Stay of Contract Award or Performance
An agency that receives a timely and properly filed pre-award protest may not award a contract pending the agency’s resolution of the protest. See FAR 33.103(f)(1). Where the agency wishes to override the stay of award, someone at a level above the contracting officer or another agency official must justify the need to make the contract award in writing, explaining the urgent and compelling reasons or why making the award would be in the government’s best interests.
In those instances where an award has already been made, if the agency receives a protest within ten (10) days of the award or within five (5) days of a “required” debriefing date offered by the agency, the contracting officer is required to suspend contract performance immediately. See FAR 33.103(f)(3).
A note of caution – while a protester may file at the agency level and then refile its protest before the GAO, the time within which it takes the agency to issue a decision does not extend the automatic stay provisions of the Competition in Contracting Act that applies at the GAO.
No Right to Discovery
After a timely agency level protest is received, and in sharp contrast to protests filed at the GAO or COFC, an agency is under no obligation to provide responsive documents. The regulations state that the parties “may exchange relevant information,” but that does not usually happen, and the only other document filed in an agency level bid protest is the agency’s decision. Thus, there are no other proceedings unless the agency voluntarily provides for any.
The Decision, and Possible Outcomes and Remedies
An agency must use “their best efforts” to resolve the protest within thirty-five (35) days of filing.
In terms of remedies, the agency has several options when reviewing a bid protest, the most straightforward being that the agency can deny the protest. If, however, the agency finds merit to any or all of the protest grounds or reasons for the protest, and depending on the type of protest ground raised, the agency can:
- Terminate the awarded contract,
- Re-compete the contract,
- Re-evaluate proposals or quotations,
- Conduct discussions on all or part of the proposals or quotations,
- Amend the solicitation to fix any faulty parts,
- Refrain from exercising options under an existing contract.
In terms of an appeal, an agency’s adverse decision may be “appealed” internally according to agency-specific procedures or by filing a protest at the GAO.
Keeping Confidential Information Protected
Unlike at the GAO and the COFC, agency level protests do not provide a procedure under which to obtain protection for proprietary and confidential information. While there is no formal procedure, any documents filed with the agency should be marked with a proprietary and confidential legend and further be marked to request that the document and information contained therein should not be released outside the government and is not subject to release under the Freedom of Information Act.
Advantages/Disadvantages to Agency Level Protests
Advantages to agency level protests include:
- Straightforward and simple procedures,
- Quick decision (generally thirty-five (35) days),
- Lower attorneys’ fees – some contractors/vendors prefer to file agency level protests on their own, further decreasing costs,
- Can be useful and expeditious in settling pre-award protests, such as resolving ambiguities in the solicitation,
- The protest remains private, meaning other potential parties do not have a right to see the protest or decision.
Disadvantages to agency level protests include:
- Loss of the right to an automatic stay if you then file at GAO,
- Possible lack of objectivity and impartiality since it is the agency itself reviewing the protest,
- Counsel is generally not allowed to review the evaluation record,
- Procedures vary from agency to agency,
- Not always clear when “adverse action” has occurred to trigger timeliness rules if a protester then wants to pursue the action at GAO.