Overview
FAR 33.102 provides the foundational policies for handling bid protests, mandating that contracting officers seek legal counsel for all protests and granting agency heads the authority to take corrective actions. It outlines specific administrative procedures regarding fund availability, procurement integrity reporting, and the government's right to seek reimbursement from contractors for costs associated with misrepresentations.
Key Rules
- Mandatory Legal Review: Contracting officers (COs) must consider all protests and obtain legal advice regardless of whether the protest is filed with the Agency, the GAO, or the U.S. Court of Federal Claims.
- Agency Corrective Action: If an agency head finds a solicitation or award non-compliant with law, they may implement GAO-style recommendations, pay protest costs, or demand reimbursement from the awardee if the protest resulted from the awardee’s intentional or negligent misrepresentation.
- Availability of Funds: Under 31 U.S.C. 1558, if contract funds would otherwise expire during a GAO protest, those funds remain available for obligation for 100 days after a final ruling is issued.
- Anticipatory Stays: A CO has the discretionary authority to stay contract performance before a protest is even filed if they determine a protest is likely and a delay is in the government's best interest.
- Procurement Integrity Timeline: To protest a procurement integrity violation at the GAO, the protester must have reported the evidence of the violation to the CO within 14 days of discovery.
- Status Protests: Protests regarding small business, HUBZone, or SDVOSB status are redirected to the specific procedures found in FAR Part 19.
Practical Implications
- Awardee Liability: Contractors must ensure absolute accuracy in their representations and certifications; if a protest is sustained because of a contractor's "negligent misstatement," the government can recoup its legal costs through debt collection or payment offsets.
- Budgetary Protection: The 100-day fund extension provides a critical "safety net" for agencies, ensuring that "use-it-or-lose-it" year-end funds aren't forfeited due to the length of the GAO's 100-day clock.
- Reporting Urgency: Potential protesters must move extremely fast—within 14 days—to report integrity issues (like leaked confidential info) to the CO, or they effectively waive their right to use that evidence at the GAO later.