Overview
FAR 33.103 establishes the procedures for "agency protests," which are designed to provide an inexpensive, informal, and expedited alternative to protesting at the Government Accountability Office (GAO) or in federal court. It emphasizes resolving disputes at the contracting officer level through open discussion and administrative review within the agency.
Key Rules
- Prior Resolution Efforts: Before filing, parties are required to use "best efforts" to resolve concerns directly with the contracting officer through frank and open discussions.
- Filing Deadlines:
- Solicitation Improprieties: Must be filed before bid opening or the closing date for receipt of proposals.
- All Other Cases: Must be filed no later than 10 days after the basis of the protest is known or should have been known.
- Stay of Procurement:
- Pre-award: If a protest is received before award, the contract may not be awarded unless justified in writing for urgent and compelling reasons or the government's best interest.
- Post-award: If filed within 10 days after award or within 5 days after a required debriefing, the contracting officer must immediately suspend performance unless justified in writing.
- Independent Review: Protesters may request an independent review of their protest at a level above the contracting officer.
- GAO Interaction: Pursuing an agency protest does not extend the time for obtaining a stay at the GAO. If the agency denies a protest, any subsequent GAO filing must occur within 10 days of "initial adverse agency action."
- Resolution Goal: Agencies should strive to resolve protests within 35 days of filing.
Practical Implications
- Agency protests offer a cost-effective way for contractors to correct clear errors without the high legal fees associated with GAO or Court of Federal Claims litigation.
- Contractors must be extremely vigilant regarding timelines; failing to file at GAO within 10 days of an agency’s adverse decision will result in the loss of GAO protest rights and the automatic stay of performance.