Contracting Officer Podcast
Slides
Knowledge & Insights From Contracting Officers
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Episode 023
What is a Protest?
Original Air Date: April 19th, 2015
Hosts: Kevin Jans & Paul Schauer
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Formatting notes
• Hyperlinks: Blue font indicates hyperlinks – presentation must be in
‘Slide Show’ mode to activate the link
• Red bold font indicates a point of emphasis
• Green bold font indicates CO’s personal comment or perspective
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Introduction
• Purpose of this podcast:
• To explain what a protest is, and how it works
• To examine circumstances that determine WHEN and IF you should file a
protest
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When does the xxx happen?
• Acquisition Time Zones
(from Podcast Episode 003)
• Execution Time Zones
(from Podcast Episode 084)
• Requirements Zone
• Kick Off Zone
• Market Research Zone
• Performance Zone
• RFP Zone (proposal zone)
• Re-compete Zone
• Source Selection Zone
• Wrap-up Zone
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What is a Protest?
• FAR 33.101
• FAR 52.233-2 (Service of Protest)
• FAR 52.233-3 (Protest after Award)
• “Protest” means a written objection 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.
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What is a Protest?
• An award or proposed award of the contract.
• A termination or cancellation of an award of the contract…
• IF the written objection alleges that the termination or cancellation is
based on improprieties concerning the award of the contract.
• Protests most commonly regard the award of a contract
• NOTE: Prior to submission of an agency protest, all parties shall use their best
efforts to resolve concerns raised by an interested party at the contracting
officer level through open and frank discussions (FAR 33.103(b))
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FAR 15.507 – Protests Against Award
• FAR 15.507 -- Protests Against Award.
• (a) Protests against award in negotiated acquisitions shall be handled in
accordance with Part 33.
• Use of agency protest procedures that incorporate the alternative dispute
resolution provisions of Executive Order 12979 is encouraged for both preaward
and postaward protests.
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Why Should Government Care?
• Book answer: FAR Part 33 says you must
• Our answer (With great power comes great responsibility…)
• We believe in checks and balances
• The citizenry gets a voice (and the taxpayer gets a voice)
• Still likely a lot faster and cheaper than B2B legal fights
• It’s the system we have… Let’s excel in it.
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Why Should Industry Care?
• Book answer: FAR Part 33 says they can
• Our answer:
• Industry wants to be heard
• Industry wants to believe the system is not rigged
• Industry wants to KNOW they lost fairly, and may feel that the protest is their
only way to find that out
• It’s the system we have… Let’s excel in it.
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Should I Protest?
• You can protest the solicitation, proposed award or award does not comply with
the requirements of law or regulation
• So you can protest that the Government team did not comply with Sections L
&M
• But… you cannot protest their opinions
• Meaning, the merit of each evaluated strength or weakness is not subject to
protest, no matter how stupid you think the evaluator is
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When Can I Protest?
• If based on “alleged apparent improprieties in a solicitation,” before bid opening
or closing date for receipt of proposals (FAR 33.103(e))
• In all other cases, no later than 10 days after the basis of protest is known or
should have been known, whichever is earlier
• If within 10 days after contract award or within 5 days after a debriefing, CO
shall suspend performance or terminate awarded contract
• Unless a written finding determines it is in the best interests of the US to
continue performance, called a ‘protest override’
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Whom Do I Protest To?
• The Agency (Contracting activity) - (FAR 33.103)
• Addressed to the Contracting Officer or other designated official
• The General Accounting Office (GAO) (FAR 33.104)
• With a copy to the CO within 1 day of submitting to GAO
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What Happens if I Win the Protest?
• Technically, the protest is “sustained” or “denied,” (or dismissed), but not
“won” or “lost”
• If “sustained,” you do not automatically win the competition, you get the
Government team to look at it again
• May cause proposals to be re-evaluated
• May cause submission of revised proposals
• May cause government team to start over
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What Happens if I Win the Protest?
• May take “corrective action” and redo part of the process
• May let you in the competitive range with everyone else
• May cancel the requirement (just saying…)
• Other actions, depending on circumstances
• None of these are guaranteed to get you the contract. Yes, really.
• You may have just spent money to give the contract to someone
else!
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What Happens if I Win the Protest?
• May get the Agency to pay the cost of filing and pursuing the protest
• FAR 33.104(h)(2) & (5)
• If found that protestor intentionally or negligently misstated, misrepresented, or
mis-certified, Government may seek reimbursement for protest costs from the
protestor (and debar you!)
• “You may win the battle, but lose the war.”
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But SHOULD I Protest?
• Paul’s Answer: NO
• Unless there is an egregious violation of the RFP and you are sure you would
win if your protest is sustained
• If you are 3rd best offeror, the protest is only a moral victory
• People are people: a protest cannot officially be held against you, but will be
remembered
• Government has selected the company they want to work with… Do you want
to start a program relationship knowing that they didn’t want you?
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But SHOULD I Protest?
• Kevin’s Answer: Maybe… If (and ONLY if)…
• You know what it will get you
• The investment is worthwhile for your company
• You checked your emotion and still think the Government team really did you
wrong, really
• You still WANT to win (after all of this hassle?)
• Then, and only then, maybe…
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Summary
• Protests are legal processes to dispute a contract action, IF there is sufficient
basis of impropriety
• Protests are a lot of work for all parties, and can be very expensive
• Protests do not guarantee contract award to the protestor
• Contractors must carefully weigh the costs and potential benefits before deciding
to file a protest
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