Protests are a sensitive subject with government contracting officers, because they too often carry an air of failure. All young contract specialists are indoctrinated with the ideal of awarding contracts “without protest or claim,” and all seasoned contracting personnel understand how different it is in the real world.
Sooner or later, every contracting officer receives a protest. In fact, one might make the assertion that if a person has never dealt with a protest, that person has not really been doing contracting. All that aside, the important point to note is that the critical aspect lies not in the protest, but in how well the agency, and the contracting officer, responds to the protest. And that response hinges on thorough preparation, precision and accuracy in all statements and documents, and confidence in the personnel, the product and the process.
The Federal Acquisition Regulation (FAR) Part 33.1 defines a protest as the following: “a written objection by an interested party to any of the following: 1) a solicitation.., 2) the cancellation of the solicitation…, 3) An award or proposed award…, 4) a termination or cancellation of an award of the contract…” Basically, an interested party can protest virtually any action a contracting officer takes as part of the procurement process. Once filed, the contracting officer is obligated to consider the protest and seek legal advice. Firms filing protests have three options for filing a protest, with the contracting agency, with the Government Accountability Office (GAO), or with the US Court of Federal Claims. This article will focus on Agency protests, as referenced in FAR Part 33.103, Protests to the Agency.
The FAR directs that all parties use their “best efforts to resolve concerns raised by an interested party at the contracting officer level” before formal submission of an agency protest. These best efforts rest upon open and frank discussions. The FAR further directs that the agency will “provide for inexpensive, informal, procedurally simple and expeditious resolution of protests,” including the encouraged use of alternative dispute resolution techniques and neutral third parties or personnel from other agencies.
The language of the FAR indicates that the government prefers that protests be filed with the agency rather than with GAO, and that protests be resolved at the lowest level possible, beginning with the contracting officer or designated representative. Nevertheless, the FAR requires that the agency develop procedures that permit independent review of the protest at levels above the contracting officer, and that solicitations advise potential bidders and offerors that those procedures are available. At any rate, once an interested party has decided to file a protest, the format, content and guidelines set forth in FAR Part 33.103(d)(2) must be followed, or the protest may subject to dismissal.
Protests do have limitations on the timeliness for filing. FAR Part 33.103(e) states that “protests based on alleged apparent improprieties in a solicitation shall be filed before bid opening or the closing date for receipt of proposals. In all other cases, protests shall be filed no later than 10 days after the basis of protest is known or should have been known, whichever is earlier.” However, the contracting agency does retain the latitude in certain cases to consider the merits of any protest which is not timely filed.
FAR Part 33.103(f) covers the government’s required actions and response upon receipt of the protest. Much of that is situation dependent, but contracting officers are directed to deal with all protests fairly, and to resolve them as quickly as possible. The next section, Part 33.103(g) specifies that “agencies shall make their best efforts to resolve agency protests within 35 days after the protest is filed.” Essentially, the contracting officer must address the protest and attempt to determine that the integrity of the procurement has been maintained, while maintaining the government’s best interests in mind.
In summary, protests are a valuable tool for interested parties to raise concerns to the contracting officer during any phase of a procurement, but they must be carefully considered and prepared before being filed. Government contracting officials take protests very seriously, and take great pains to ensure the integrity of a procurement in order to best ensure that no protest can be upheld.