Most bid protests are filed with the Government Accountability Office (GAO) or brought before the Court of Federal Claims. However, there’s a third, often over-looked, forum to bring a bid protest – before the procuring agency itself. Agency-level protests were officially authorized by President Clinton in 1995 and are governed by Section 33.103 of the Federal Acquisition Regulation (FAR), agency FAR supplements, and agency-specific guidance.
Agency-level protests, when effective, provide protesters a quick and relatively inexpensive forum. However, agency-level protests are seldomly used because they can be risky and are feared to be biased.
Professor Christopher Yukins of the George Washington School of Law wrote a report which assesses agency-level protests and how they could work better. In his report, Yukins made several recommendations to implement more robust procedures, which include clarifying:
- Where the protest is heard;
- What can be protested;
- Time limits;
- Whether procurement must be stopped during the protest;
- Whether discovery is allowed; and
- Whether agency-level protest decisions are published.
Section 33.103(d) of the FAR currently provides that agency-level protests will be addressed by the “contracting officer or other official” or a protester “may request an independent review,” creating confusion for protesters. 48 C.F.R. § 33.103. However, designating a specific person within each agency, such as an “Agency Protest Official,” would establish consistency and fairness in the process.
Additionally, there is no bright-line rule on what can be protested and the FAR provides no guidance. Agencies, however, have set their own rules on what they will and what they will not hear, creating inconsistency. Clarification on what can be protested at the agency-level would create clear authority for all agencies.
There are two time-related concerns that a prospective protester must be aware of: (1) when must it file its protest, and (2) how long does the agency have to decide. Currently, pursuant to FAR 33.103, agency-level protests must be filed at the agency “within 10 days after contract award or within 5 days after a debriefing date . . . whichever is later.” Id. However, how long an agency has to decide is not so clear cut. FAR 33.103(g) provides that agencies should use their “best efforts” to resolve an agency-level protest within “35 days.” Id. Creating a more concrete, and perhaps shorter, deadline would reduce disruption in the procurement process and ensure that agencies address, review and make a decision on a protest in a timely manner, allowing a protester to seek alternative relief if it chose to do so. Creating a firm timeline for processing claims in conjunction with straight-forward instructions on what must be included in a protest and in a decision, along with mandating that a decision be written would eliminate confusion for the protester, saving time and money.
The FAR provides that if a protest is filed “timely,” the contract will not be awarded or performance will be stayed. Id. However, an agency has the ability to “override” a stay, making agency-level protests less attractive. Further, it’s currently unclear when agencies receive protests, and, therefore, issue stays. Accordingly, an agency should acknowledge receipt of the protest, if a stay is issued (and when it’s effective), and provide clear instructions on the status of the stay in its final decision. This would prevent all involved from suffering damages.
Lastly, there’s currently almost no data available on agency-level protests, making protesters reluctant to file a protest with an agency. To establish credibility for agencies, and, in turn, create comfort among protesters, publishing data and agency-level opinions is crucial.
Reforms and amendments to the agency-level bid protest system would improve the procurement process. In turn, protesters would rely on agency-level bid protests, reducing time and costs.