The Advantages and Disadvantages to Agency-level ProtestsADR2022-02-17T18:36:18-05:00
The Advantages and Disadvantages to Agency-level Protests
Efficient Process with a Quick Decision. An agency-level protest is much quicker than protests filed within other fora. A contracting officer is to make his or her best effort to render a decision within 35 days. In contrast, a protest submitted to the GAO can take up to 100 days, and a protest at the U.S. Court of Federal Claims can take even longer.
Informal Process. An agency-level protest permits the contractor and the contracting officer (or person at a level above the contracting officer) to engage directly with each other and have open communications using an informal process, rather than through the structured process of other fora. In other protest fora, the judge or the GAO attorney sets the schedule and will dictate how and when parties can exchange and submit information to each other and to the fora.
Non-confrontational. An agency-level protest is intended to be informal and non-adversarial. FAR 33.103(b) encourages “open and frank” discussions between the parties. It is not intended to be an adversarial, litigation-focused process like other protest fora. FAR 33.103(c) also encourages the parties to engage in ADR to resolve the protest issues.
Automatic Stay. When a contractor files a protest, an automatic stay is initiated, provided the FAR requirements are met (i.e., the protest must be submitted within 10 days after contract award or within 5 days after a debriefing date offered to the protester if a timely debriefing date was offered to the protester in accordance with FAR 15.505 or FAR 15.506). Note, however, that the agency can override the stay when contract award or performance is necessitated by urgent or compelling reasons or it is in the best interest of the Government. An agency must comply with requirements set forth in FAR 33.103(f)(3) if it chooses to override the mandatory stay.
No Extension for GAO Filing Deadline for CICA Stay. Pursuing an agency-level protest does not extend the time for obtaining a stay at GAO. Agencies may include, as part of the agency process, a voluntarily suspension period when agency protests are denied and the protester subsequently files at GAO. See FAR 33.104(f)(4).