Bid Protests- Agency Level Protests

In 1995, President Clinton issued Executive Order 12979 directing all executive agencies to establish alternative dispute resolution (ADR) procedures for bid protests. Executive Order 12979 directs agency heads to create systems that, “to the maximum extent possible,” will allow for the “inexpensive, informal, procedurally simple, and expeditious resolution of protests.” Executive Order 12979, Sec. 1. FAR 33.103, entitled “Protests to the agency,” implements Executive Order 12979 and includes certain procedural requirements that a contractor must follow to file an agency-level protest. In addition to the requirements contained in FAR 33.103, each agency also has its own administrative procedures that lay out the ground rules for any protest to that agency. It is imperative that contractors who are considering filing an agency-level protest review both FAR 33.103 and the agency specific guidance, if available.

Agency-level protests are filed with the contracting officer or any other agency official who is designated to receive bid protests for that agency. Agency-level protests, at a minimum, must include the following information:

1. Name, address, and fax and telephone numbers of the protester.
2. Solicitation or contract number
3. A detailed statement of the legal and factual grounds for the protest, to include a description of resulting prejudice to the protester.
4. Copies of relevant documents.
5. Request a ruling by the agency.
6. Statement as to the form of relief requested.
7. All information establishing that the protester is an interested party for the purpose of filing a protest.
8. All information establishing the timeliness of the protest.

Protests challenging the propriety of a solicitation must be filed prior to bid opening or the closing date for receipt of proposals. FAR 33.103(e). In all other cases, a protest must be filed with the agency “within 10 days after contract award or within 5 days after a debriefing date . . . whichever is later.” See FAR 33.103(f)(3).

As mandated under the Competition in Contracting Act (CICA), during the pendency of an agency-level protest, the agency must observe a stay of award, that is, the agency may not move forward with awarding the contract nor may the apparent awardee begin performance of the contract. The upshot of a stay for an incumbent contractor is that the incumbent will usually be given a temporary bridge contract to continue performance of the contract until the protest is resolved.

One of the most important considerations for deciding whether to bring a protest at the agency level is that pursuing an agency-level protest will not toll the running of the clock to obtain a CICA stay during the pendency of any follow-on GAO bid protest. As discussed below, to get a CICA stay during the pendency of a GAO bid protest, the protest must be filed within 10 days of award or within 5 days of a required debriefing. These deadlines are still in force even if a protest is filed at the agency level first. Thus, if a protester files an agency-level protest first, it is unlikely that the agency will resolve the protest before the GAO’s CICA stay deadlines have passed. But while the deadlines for a CICA stay do not toll during the pendency of the agency-level protest, the timeliness requirements for the GAO’s jurisdiction do toll. Thus, typically, if the protester wants to file a later protest at the GAO, it may do so, but it will be without the benefit of a CICA stay. This is one of the primary reasons why a protestor, particularly an incumbent contractor, might decide to first file with the GAO rather than use the agency-level bid protest procedures.

The Federal Acquisition Regulation (FAR) requires agencies to make their best efforts to resolve agency-level protests within 35 days after the protest is filed, which is much quicker than the 100-day deadline at the GAO. An agency protest decision “shall be well-reasoned and explain the agency position.” See FAR 33.103(h). Agencies may grant any relief that the Comptroller General could grant had the protest been filed with the GAO. Additionally, a protestor may request independent review of an adverse agency protest decision at a level above the contracting officer however, contractors must be aware that an independent review of the contracting officer’s initial protest decision does not extend GAO’s timeliness requirements discussed above.

An agency-level protest is almost always the least expensive and least formal bid protest forum. It is also typically the quickest forum in which to resolve a bid protest—agencies are encouraged to resolve their protests within 35 days, while the GAO has a 100 day deadline, and the COFC has no deadline with protests at the COFC taking from several months to as much as a year or longer, depending on the complexity of the protest. However, at the agency level, unlike the GAO or COFC, the protestor has no right to conduct discovery. As such, unless the agency’s error is obvious, it will be difficult for the protester to make its case without the benefit of the underlying procurement documents. Additionally, it is often unlikely that the government official responsible for making the contract award will suddenly change her mind once an agency-level protest is made. But where the agency’s mistake is obvious and uncontroversial, an agency-level protest can be efficient and effective. This is especially true when the protester can obtain review from a more senior procurement official who might be more willing to accept that errors were made.

Statistics on agency-level protests are hard to find, as there is no requirement for an agency to track the number of protests or the success rate of those protests. Some, agencies, such as the Army Materiel Command must keep statistics on the number of protests, assessment of the causes of such protests, summary of corrective action taken, and the distribution of such protests by Contracting Office. See (AFARS) 5133.103-90. Because the information on agency-level protests is limited, it is difficult to compare the success rates to those of the other bid protest forums.

Agency-level protests can be an extremely cost-effective way for a contractor to protest the award of a government contract. Contractors who are considering filing an agency-level bid protest should contact experienced counsel who will know how to best represent their interests before the various federal agencies.