Overview
Subpart 33.1 of the FAR prescribes policies and procedures for handling protests by interested parties regarding solicitations, contract awards, or cancellations. It establishes the framework for administrative challenges filed directly with the agency, the Government Accountability Office (GAO), or the U.S. Court of Federal Claims, emphasizing timely resolution and the maintenance of procurement integrity.
Key Rules
- Definition of "Day": Time is computed in calendar days. If the final day falls on a weekend or Federal holiday, the period extends to the next business day.
- Filing Deadlines:
- Solicitation Improprieties: Must be filed before bid opening or the closing date for receipt of proposals.
- Post-Award: Generally must be filed within 10 days after the basis of the protest is known (or should have been known), or within 5 days after a required debriefing.
- The "Stay" Requirement: A timely protest triggers a mandatory stay. If filed within 10 days of award or 5 days of a required debriefing, the agency must suspend performance or withhold award unless a high-level override is approved.
- Close of Business: Documents are considered "filed" only if received by 4:30 p.m. local time; anything later is credited to the next business day.
- Protest Venue Jurisdiction: Protests may be filed with the agency, GAO, or U.S. Court of Federal Claims. Notably, U.S. District Courts have no jurisdiction over bid protests.
- Attorney Fee Caps: For large businesses, GAO-recommended attorney fees are capped at $150 per hour unless a special factor justifies a higher rate.
Responsibilities
- Contracting Officer (CO):
- Must consider all protests and immediately seek legal counsel.
- Notify the contractor (if awarded) or all prospective offerors once a protest is filed.
- Compile the "Agency Report" (a comprehensive file of all relevant documents) within 30 days for GAO protests.
- Decide whether to stay performance if a protest is "likely" but not yet filed.
- Head of the Contracting Activity (HCA):
- Holds the nondelegable authority to authorize a contract award or performance "notwithstanding" a protest based on urgent and compelling circumstances.
- Interested Party (Protester):
- Must demonstrate a direct economic interest affected by the award.
- Must provide a complete copy of a GAO protest to the agency within one day of filing with GAO.
- Agency Head:
- Authorized to take corrective action, pay costs, or seek reimbursement from an awardee if a protest is sustained due to the awardee's misrepresentation.
Practical Implications
- The "CICA Stay" is the Protester’s Greatest Leverage: The automatic stay of performance (under the Competition in Contracting Act) is a powerful tool for protesters. It prevents the incumbent or new awardee from beginning work, often forcing the agency to take a hard look at its evaluation to avoid lengthy delays.
- Strict Timeliness is Non-Negotiable: Missing the 4:30 p.m. filing window by even one minute can result in a protest being dismissed as untimely, or more commonly, the loss of the right to an automatic stay of performance.
- Agency-Level Protests as a Strategic Choice: They are designed to be "inexpensive and informal." While they offer a faster resolution (35-day goal), filing an agency-level protest does not automatically extend the timeline to later get a stay at the GAO.
- Administrative Burden on Agencies: Once a GAO protest is filed, the procurement effectively hits a wall. The CO must pivot from acquisition to litigation support, spending significant time building the Agency Report and Memorandum of Law.