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Agency-Level Bid Protests

Many bid protest attorneys routinely dismiss the agency-level protest as a waste of time and money. This is unfortunate. When used properly, an agency-level protest can save both. And it also offers aggrieved bidders a way to correct the government’s error without rubbing their noses in it.

The agency-level protest is the child of Executive Order 12979 issued by President Clinton in 1995. (But, happily, it is available to both Democratic and Republican bidders equally.) Envisioned as a less expensive and speedy alternative to more formal protests, the agency-level protest has acquired a reputation among bid protest attorneys as a lesser remedy to that provided by a Government Accountability Office (GAO) or Court of Federal Claims (COFC) protest. While a formal protest is the correct approach in many instances, the agency-level protest is a valuable tool under the right facts.

Similar to more formal protest schemes, the agency-level protest exists to correct procurement errors committed by the government. While generally directed towards the Contracting Officer (CO), a bidder can have the CO’s decision protested to his or her supervisor when this makes more sense. If the agency determines a solicitation, proposed award, or award is improper, it has broad discretion in terms of correcting the error. For example, it can (i) take any action that the GAO would have recommended, had the protest been filed with the GAO, and (ii) award costs to the protester for prosecution of the protest. And just like a GAO protest, the timely filing of an agency-level protest suspends contract performance until the protest is resolved. Finally, if you are unhappy with the agency’s protest decision, you can get a “second bite of the apple” and still take your protest to the GAO. So, what’s not to like?

Some bid protest attorneys note that the “stay” in an agency-level protest—the basis for the government suspending progress on the procurement or performance of the awarded contract—is merely regulatory in nature. Others site the extensive body of GAO decisions that provide clarity and inform decision-making. Both points are well taken. And in many instances, the GAO (or COFC) protest is the better decision.

But a number of my clients, having devoted years to developing a strong customer relationship, are loath to put that investment at risk. There’s no way around it: a GAO or COFC protest is perceived by the government customer to be a challenge to their authority and the efficacy of their decision-making. They are costly for both sides.

Deciding between your reputation and your rights is a false dilemma. When unsuccessful bidders don’t want to choose between preserving their relationship with their government customer and defending their right to a fair and impartial procurement process, the agency-level protest can be the right tool for the job.

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