Agency-Level Determinations

Who Adjudicates the Agency-Level Protest?

Depending on the agency, the contracting officer or an individual above the contracting officer with independent decision authority, may adjudicate the protest. If the protest is decided by the contracting officer, the offeror may request that the agency provide for appellate review of the contracting officer’s decision by an independent decision authority.  

 

No agency report is required to be compiled for an agency-level protest.  However, some agencies permit creation of an agency report pursuant to their own agency rules.  Whether the offeror is permitted to submit a response or reply to the agency report is dependent upon agency-specific rules.  Protesters are not entitled to seek source-selection documents relevant to the procurement.  Rather, the FAR states that the parties “may” exchange relevant information.  In addition, the successful awardee and other offerors are not entitled to intervene in the agency protest, although the agency could permit the awardee to submit comments if the agency finds a need or a benefit in doing so.  Pursuant to FAR 33.103(g), the contracting officer should make his or her best effort to render a decision within 35 days.  The decision is provided only to the protester; it is not published.  In the event that the contracting officer cannot render a decision within that time, the contracting officer is obligated to keep the protesting offeror apprised of when a decision will be forthcoming.  During the pendency of an agency-level protest, the procurement should be stayed if timely filed in accordance with FAR 33.103(f)(3).

The agency may take any action, including corrective action, or grant any remedy that could be recommended by the Comptroller General if the protest had been filed with GAO.  Agencies may also pay protest costs under the same standards that allow costs to be paid to a prevailing party in a GAO protest.  See FAR 33.102(b)(1).