Agency Protests: A Contractor’s Secret Weapon
What do you do when the Agency has made a mistake in the solicitation for a contract requirement or not selected your company for award of the contract? Most contractors think of filing a protest to Government Accountability Office (GAO) or the Court of Federal Claims (COFC) and therefore do not avail themselves of the secret weapon in bid protests—an agency protest.
Smart contractors utilize agency protests which are, cheaper, quicker, not revealed to other offerors, and have little downside on pre-award issues. While there are risks, an agency protest provides another protest weapon to gain an edge for a contractor in the fight for contracts.
The protester makes the same arguments it would also make for a GAO protest, and the agency issues its decision, if possible, within 35 days. The protestor may also file a protest with the GAO (within 10 days of adverse agency action on its agency protest) or the COFC. Agencies sometimes voluntarily agree to continue a stay from an agency protest during a subsequent contractor protest at the GAO or COFC.
Agency Protest Stay of Contract Award and Performance
This contractor weapon is described under Federal Acquisition Regulation (FAR) 33.103 Protests to the agency as well as FAR supplements. For problems with solicitation improprieties, an agency protest is ordinarily timely if filed before bid opening or the date set for receipt of proposals. For anything other than a solicitation impropriety, as with a GAO protest, the contractor most drop their agency protest bomb quickly, no later than 10 days after the protest ground was known or should have been known, whichever is earlier. FAR 33.103(e).
Timely filing of an agency pre-award protest ordinarily stays the contract award, and timely receipt of an agency protest within 10 days after a contract award or five days after a required and requested debriefing, whichever is later, ordinarily stays performance of an awarded contract. FAR 33.103(f)(1), (3).
GAO Automatic Stay of Performance
However, keep mind filing an agency protest does not extend the time for obtaining the all-important automatic stay of performance provided by a contractor’s protest to the GAO. So, if a contractor still wants to get that GAO stay, a contractor may have to file a full on GAO protest under the 10 days after award rule for obtaining that stay; and forgo a decision on the agency protest. The agency therefore sometimes will rule on the agency protest to forestall a GAO protest.
Secrecy, Loose Lips Sink Ships
Knowledge is power in getting contracts, and there is no public reporting of agency protests. Only the protesting company and the agency will know about the grounds or outcome of the protest. Just like anyone else, agencies do not like a public record that they made a mistake. The information gleaned by the protestor from the government during the agency protest can be a force multiplier in battling for the contract award.
Lower Attorney Fees and Quicker Decision
Agency protests are almost always less expensive than protests at the GAO or the COFC. There are no filing fees, and normally the contractor does not need any submission other than the initial protest letter. A decision can generally be expected by the contractor from the agency within 35 days.
Your Competitors Cannot Participate
Unlike protests at the GAO or the COFC, agency protests do not have competitors as intervenors in the protest. This means your competitors generally will not have the opportunity to weigh in on your protest or supply the agency with ammunition to shoot it down. Unless the agency has to stay performance of an awarded contract or ask offerors to hold open their offers, other offerors are often completely unaware that an agency protest has even been filed. Again, highlighting that the agency protest can be a secret weapon.
Risks and Conclusion
The agency protest is an overlooked secret weapon that should be in a contractor’s arsenal in its fight for contracts. Like any weapon, there are risks and potential collateral damage associated with its use, especially with timeliness of a subsequent protest to GAO and obtaining the GAO automatic stay. These risks are best navigated by a contractor consulting government contracts counsel.