Gao Protest vs. Agency-Level Protest

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GAO Protest vs. Agency-Level Protest

Introduction

The United States government is the largest single purchaser of goods and services in the world. Even during times of economic hardship, the US continues to dump billions into the private sector. The federal procurement spending rate of growth has surpassed the rate of U.S. inflation every year, since 2000. With annual federal procurement budgets of more than $400 billion, it is no surprise that the competition for government contracts has increased tremendously. Consequently, more and more companies are trying to get a piece of the action. When these companies adhere to all of the required regulations and statutes, they expect their proposals to be evaluated and the contract awarded in a fair and unbiased manner (Nacke & Ralston 2011).

When a procuring agency fails to adhere to the regulations and/or the terms listed within the solicitation, a bid protest may be filed (Nacke & Ralston 2011). A bid protest is a tool that a contractor can use to legally contest the process or result of a government contract award. In order to file a protest, one must be considered an interested party, meaning they are an offeror or prospective offeror who would be financially affected by either the award or the non-award of the contract. There are three different types of protests available to contractors. Each has differing procedures but they share the main requirement; In order to win, they must provide supporting information which would prove that they have been prejudiced by the government agency. The two most common forms of bid protest are the agency-level protest and the Government Accountability Office (“Bid Protests,” 2010).

Agency-Level Protest

What is an agency level protest?

An agency-level protest is one which is filed directly with the agency who is facilitating the procurement. It is viewed as the least formal of two processes. The agency-level protest offers a faster resolution and is less expensive than a GAO protest. Additionally, if the interested party does not get the ruling they want, they still have the option to file a protest with the GAO. Essentially, this provides a contractor with two chances to prove their case and obtain the desired result (“Bid Protests,” 2010).

History

Prior to 1995, the agency-level protest process was unorganized and informal (“Bid Protests,” 2010). In 1991, the Army Material Command (AMC) implemented an experimental procedure to provide a means for contractors to protest AMC solicitations and awards. In October of 1995, President Clinton signed Executive Order 12979 which required government agencies to develop protest procedures and implement a system for the administration of the bid protests. This was further supported through FAR 33.103, “Protests to the agency” (Nacke & Ralston 2011).

Procedure

As previously stated, an agency-level protest can be filed by any interested party who believes that they has been a prejudice or that the terms of the solicitation and/or federal regulation have not been followed. As required through Executive Order 12979, each agency has developed and implemented its’ own protest procedures. All procedures however must be in compliance with said order as well as FAR, subpart 33.103 (“Bid Protests,” 2010). Prior to initiating a protest, an interested party should locate and become familiar with the agency’s procedure. These should be outlined within the solicitation (Nacke & Ralston 2011).

FAR 33.103 states that before an agency protest is filed, the contracting officer and the interested party are required to participate in open conversation to attempt to resolve the issue. If both parties have made every effort, but the attempts at resolution have been unsuccessful, the interested party may then press forward with the agency protest (FAR, 2012). The agency-level protest should be delivered to either the contracting officer or the person delegated to receive...
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