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Protests

What is a protest?

A protest is an objection, written 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

A termination or cancellation of an award, 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.

What is an interested party?

An interested party is an actual or prospective bidder or offeror whose direct economic interest would be affected by the award of a contract or by the failure to award a contract. This means that the complaining party must show that it has, in some manner, been adversely affected by the government decision that serves as the basis for the protest.

What are the methods by which a bidder may file a protest?

There are two methods by which an individual can file a protest:

1. Filing a protest with the CO is called an agency protest. The CO will review the protest and make a determination as to its validity.

2. Filing a protest with the General Accounting Office (GAO) is called a formal protest.

The protest must be filed in writing and must name the contracting agency and the contract or solicitation, and it must provide a detailed statement of the legal and factual grounds for the protest and provide information establishing that the protester is an interested party for the purpose of filing a protest.

The protest must also be timely. Protests against alleged improprieties (e.g., the government's making restrictive specifications) must be filed prior to bid opening or proposal closing. Other protests must be filed within ten calendar days from the date the basis for the protest is known or should have been known. For example, if an agency protest is denied, a protest to GAO would have to be filed within ten days. In negotiated procurements for which an offeror requested a debriefing, the offeror has ten calendar days, dating from the debriefing, to file a protest.

What is the formal protest process?

After a GAO protest has been filed, GAO will notify the CO and will request the submission of a protest report. The COR may be required to assist the CO in preparing this report. In addition, if GAO decides to hold hearings, the COR may be required to attend them to support the contracting agency's position. GAO has 100 calendar days to make a decision on a protest unless the "express" option is requested by either party, in which case GAO has 65 calendar days to make its decision (or recommendation).

What may GAO recommend when a protest is filed?

GAO may recommend that the contracting agency:

Issue a new solicitation

Award a contract consistent with statute or regulation

Re-compete the contract

Terminate the contract

Refrain from exercising options (to purchase additional quantities or extend the period of performance) under the contract

Follow other GAO recommendations to promote compliance.

What is the COR's role in the event of a protest?

The COR must gather facts, document the situation, and be prepared to support the government's position and participate in the debriefing and protest processes as required. The COR's documentation skills will be put to the test because of the intense legal scrutiny and potential ramifications from both a contractual remedy and cost standpoint; that is, the COR's documentation usually has significant bearing on whether the government wins or loses the litigation.

 
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