Overview
FAR Part 33 prescribes the policies and procedures for filing and processing protests, as well as handling contract disputes and appeals. It establishes the framework for "interested parties" to challenge solicitation terms or award decisions through three primary venues: the Agency, the Government Accountability Office (GAO), and the U.S. Court of Federal Claims.
Key Rules
- Timeliness for Stays: To trigger an automatic stay of performance, a protest must be filed within 10 days after contract award or within 5 days after a required debriefing, whichever is later.
- Definition of "Day": All "days" are calendar days. If the deadline falls on a weekend or Federal holiday, it extends to the next business day.
- Filing Deadlines: Documents are considered "filed" only when received by the agency before 4:30 p.m. local time; anything received after is considered filed the following day.
- Automatic Stay of Award/Performance: Upon a timely protest, an agency must generally stop the award process or suspend performance of an awarded contract unless a high-level written justification for "urgent and compelling circumstances" or "best interests of the Government" is provided.
- Venue Jurisdiction: Protests can be filed with the Agency, the GAO, or the U.S. Court of Federal Claims. Notably, U.S. District Courts do not have bid protest jurisdiction.
- GAO Timelines: The GAO typically issues a recommendation within 100 days of filing (65 days under the "express option"). The agency must submit a complete report to the GAO within 30 days of notification.
Responsibilities
- Contracting Officers (CO):
- Must seek legal advice immediately upon becoming aware of a protest or litigation.
- Responsible for notifying all "reasonable prospect" offerors when a protest is filed.
- Must compile the "Agency Report" for GAO, including a statement of relevant facts and a memorandum of law.
- Determines if an awardee should reimburse the government for protest costs in cases of misrepresentation.
- Head of the Contracting Activity (HCA):
- Holds non-delegable authority to authorize contract award or performance "notwithstanding" a protest (the "override" process) based on written findings of urgency or best interest.
- Interested Parties (Protesters):
- Must provide a complete copy of a GAO protest to the agency within one day of filing with the GAO.
- Must demonstrate "direct economic interest" to have standing to protest.
- Agency Legal Counsel:
- Provides mandatory legal review and advice for all protests regardless of the venue.
Practical Implications
- Procurement Delays: The "automatic stay" provisions mean that a single timely protest can effectively freeze a critical procurement for over three months. Agencies must build "protest windows" into their acquisition timelines to avoid operational gaps.
- Documentation is Critical: Because the GAO decision is based largely on the "Agency Report" and the contemporaneous record, Contracting Officers must ensure every evaluation score and trade-off decision is thoroughly documented at the time it is made.
- Debriefing Strategy: The "5-day post-debriefing" rule creates a high-stakes environment for both the government and the contractor. Offerors use debriefings not just for feedback, but as a formal mechanism to preserve their right to a stay of performance.
- Financial Risk: If a protest is sustained, the agency may be required to pay the protester’s costs, including legal fees and proposal preparation costs, which are drawn from the funds originally available for the procurement.