Many federal agencies permit a contractor to file an agency-level protest in an effort to resolve conflict at the lowest level possible. The concept of the agency-level protest has its origin in in President Clinton’s Executive Order 12979, issued in 1995. Executive Order 12979 directed agencies to “prescribe administrative procedures for the resolution of protests to the award of their procurement contracts as an alternative to protests in fora outside the procuring agencies.” Executive Order 12979, Sec. 1. The Executive Order emphasized that agency-level protests should “to the maximum extent practicable, provide for inexpensive, informal, procedurally simple, and expeditious resolution of protests, including, where appropriate and as permitted by law, the use of alternative dispute resolution techniques, third party neutrals, and another agency’s personnel.” Id. at Sec. 1(b).
FAR 33.103, titled “Protests to the agency,” implements Executive Order 12979 and includes many of the details regarding filing deadlines, required information, etc. Review of FAR 33.103 is a must for anybody considering filing an agency-level protest. Potential protesters should also review agency specific guidance, if available.
An agency-level protest is an efficient, informal way for the contractor and the contracting officer to flesh out and amicably resolve their issues. It takes a fraction of the time for resolution–35 days, versus 100 days if a protest is filed at the GAO, or even longer in other fora. An unsuccessful offeror may be reluctant to file an agency-level protest because the relationship between the offeror and the contracting officer may already be strained and the offeror may feel that the contracting officer will not be able to render an impartial, objective decision. This is one of the reasons why the offeror has the option to request that a person with authority at a level higher than the contracting officer review and adjudicate the agency-level protest. Both the contractor and the contracting officer should put forth their best efforts to resolve a protest. Yet, even where the parties are unable to resolve protest issues, an agency-level protest may help define and hopefully narrow the protest issues in actions filed later at the GAO or the U.S. Court of Federal Claims. While not technically ADR and not part of the agency-level protest process, extended debriefings, in certain circumstances, offer another avenue for conflict resolution.
Subpages (6): Agency Information | Agency-Level Determinations | Army Materiel Command Protest Program | FAR 33.103 | Initiating the Agency-Level Protest | The Advantages and Disadvantages to Agency-level Protests