In the complex landscape of government procurement, protests play a pivotal role in upholding fairness, transparency, and accountability. As businesses engage in competitive bidding for government contracts, disputes and disagreements are inevitable. Protests provide a mechanism for companies to challenge perceived injustices, whether it be solicitation improprieties, evaluation errors, or concerns about the contract award process.

Definition: A protest, in the context of government procurement, refers to a formal objection or challenge raised by a bidder or contractor against perceived unfairness, improprieties, or irregularities in the procurement process. It is a mechanism through which businesses can seek resolution and rectification when they believe they have been treated unjustly or when there are concerns about the integrity of the procurement procedures.

Purpose of Protests in Government Procurement

These protests serve as a vital check and balance, ensuring that government procurement adheres to established regulations and procedures. In this introductory exploration of protests in government procurement, we delve into the significance of these challenges, the procedures involved, and the resources available to businesses seeking a just resolution in the realm of public procurement. Understanding the dynamics of protests is essential for companies navigating the intricate path of government contracting, empowering them to assert their rights and contribute to the integrity of the procurement process.

What Can Be Protested

A Protest means a written objection by an interested party to any of the following:

• A solicitation or other request by an agency for offers for a contract for the procurement of property or services.
• The cancellation of the solicitation or other request.
• An award or proposed award of the contract.
• Termination or cancellation of an award of the contract, if the written objection contains an allegation that the termination or cancellation is based in whole or in part on improprieties concerning the award of the contract.

An interested party has three (3) forums for filing a protest:

1. Protests to the Agency
2. Protests to the Government Accountability Office (GAO)
3. The judicial challenge in federal court under the Administrative Procedures Act

1) Protests to the Agency – Protest Procedures

The following procedures are established to resolve agency protests effectively, to build confidence in the Government’s acquisition system, and to reduce protests outside of the agency:

1. Protests shall be concise and logically presented to facilitate review by the agency. Failure to substantially comply with any of the requirements may be grounds for dismissal of the protest.
2. Protests shall include the following information:
   • Name, address, and fax and telephone numbers of the protester.
   • Solicitation or contract number.
   • A detailed statement of the legal and factual grounds for the protest, to include a description of resulting prejudice to the protester.
   • Copies of relevant documents.
   • Request for a ruling by the agency.
   • A statement as to the form of relief requested.
   • All information establishing that the protester is an interested party for the purpose of filing a protest.
   • All information establishing the timeliness of the protest.
3. All protests filed directly with the agency will be addressed to the contracting officer or other official designated to receive protests.
4. Interested parties may request an independent review of their protest at a level above the contracting officer

2) Protests to the GAO – General Protest Procedures

1. A protester is required to furnish a copy of its complete protest to the official and location designated in the solicitation or, in the absence of such a designation, to the contracting officer, so it is received no later than 1 day after the protest is filed with the GAO.
2. Immediately after receipt of the GAO’s written notice that a protest has been filed, the agency shall give notice of the protest to the contractor if the award has been made, or, if no award has been made, to all parties who appear to have a reasonable prospect of receiving an award if the protest is denied.
3. Upon notice that a protest has been filed with the GAO, the contracting officer shall immediately begin compiling the information necessary for a report to the GAO.
4. At the same time the agency submits its report to the GAO, the agency shall furnish copies of its report to the protester and any interveners
5. The GAO may issue protective orders which establish terms, conditions, and restrictions for the provision of any document to an interested party.
6. The protester and other interested parties are required to furnish a copy of any comments on the agency report directly to the GAO within 10 days, or 5 days if the express option is used, after receipt of the report, with copies provided to the contracting officer and to other participating interested parties. If a hearing is held, these comments are due within 5 days after the hearing
7. Agencies shall furnish the GAO with the name, title, and telephone number of one or more officials (in both field and headquarters offices, if desired) whom the GAO may contact who are knowledgeable about the subject matter of the protest. Each agency shall be responsible for promptly advising the GAO of any change in the designated officials.

3) Judicial challenge in federal court under the Administrative Procedures Act

Filing a lawsuit in federal court against a government decision

AcqTips:

• The information provided in this section should only be used as a guide. FAR Part 33 should be used as the guiding instruction on Protest.

AcqLinks and References:

• FAR Part 33 – Protest, Disputes, and Appeals
• Understanding and Mitigating Protests of DoD Contracts
• Website: FAR Subpart 33.1 – Protests

Updated: 7/18/2017