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Protests

DAU GLOSSARY DEFINITION

A concern over the award of a contract, submitted to Government Accountability Office (GAO) or Procuring Contracting Office (PCO).

General Information

The U.S. Government is the largest single procurer of goods and services. Offerors invest considerable time and resources responding to solicitations and performing contracts. They expect fair consideration of their submissions and contract performance. Evaluations of offers must be conducted consistent with the terms of the solicitation, governing statues and regulations, and socio-economic policies in the acquisitions process. Protests provide offerors with a tool to challenge federal contract award decisions.

 

FAR Subpart 33.1 and Title 4, Code of Federal Regulation (CFR), Section 21 prescribe policies and procedures for filing protests. A protest may be filed via hand delivery, mail, commercial carrier, fax, or e-mail.

 

Protests are typically filed with these activities:

 

  • The awarding Government agency (“agency protest”)
  • The Government Accountability Office (GAO)
  • The U.S. Court of Federal Claims

 

Protests with the Agency. Executive Order 12979 establishes policy on agency protests. Prior to submission of an agency protest, all parties must use their best efforts to resolve concerns (at the level of the contracting officer) raised by an interested through open and frank discussions. The agency should provide for inexpensive, informal, procedurally simple, and expeditious resolution of protests. Where appropriate, the use of ADR is acceptable. Agency protests must be concise and logically presented to facilitate review by the agency, and must comply with the requirements of FAR 33.103(d)(2).

 

Protests with GAO. FAR 33.102 encourages contractors to seek resolution within the agency before filing a protest with the GAO. The GAO seeks to provide an objective, independent, and impartial forum for the resolution of disputes concerning the award of federal contracts. Protests filed with GAO can usually be resolved more rapidly than by court litigation. Protests with GAO must be filed within 10 calendar days after the grounds for the protest are known or should have been known. Unless the protest is dismissed because it is procedurally or substantively defective, the GAO will either deny the protest or sustain the protest. When a protest is sustained, GAO normally recommends appropriate corrective action. GAO defers challenges relating to small business size standards or North American Industry Classification System (NAICS) standards to the U.S. Small Business Administration. 4.CFR. § 21.5 describes other issues that cannot be protested to GAO. There is no prescribed form for filing a protest with GAO, but it must be in writing and include all information required in accordance with Federal bid protest regulations.

 

Protests with the Court. The U.S. Court of Federal Claims (COFC) provides another forum to file a protest. It is generally more expensive for protesters as compared to filing with the procuring Government agency or with GAO. Protest actions at the COFC begin with the filing of a complaint, application for a temporary restraining order, and motion for preliminary injunction. The COFC hears only pre-award bid protests.

 

Alternative Dispute Resolution. Alternative dispute resolution (ADR) is a method for resolving a contractual dispute. It is a form of arbitration, and is promoted as a relatively inexpensive and expeditious alternative to filing a protest. ADR procedures may be used any time the Government contracting officer has authority to resolve the issue in controversy. If a claim has been submitted, ADR procedures may be applied to all or a portion of the claim. When appropriate, a neutral person may be used to facilitate resolution of the issue in controversy using the procedures chosen by the parties. FAR 33.214 contains additional details on ADR in federal contracting.