Georgia Tech Procurement Assistance Center

  • Home
  • About Us
  • Training
    • Class Registration
    • On-demand Training
    • GTPAC COVID-19 Resource Page
    • Cybersecurity
    • Veterans Verification Video
    • GTPAC Community
    • Other Training Audio & Video
  • Useful Links
  • Team Directory
    • Albany Counselor
    • Atlanta Counselors
    • Augusta Counselor
    • Carrollton Counselor
    • Columbus Counselor
    • Gainesville Counselor
    • Savannah Counselor
    • Warner Robins Counselor
  • Directions
    • Atlanta – Training Facility
    • Atlanta – Office
    • Albany
    • Augusta
    • Carrollton
    • Columbus
    • Gainesville
    • Savannah
    • Warner Robins
  • COVID-19
  • New Client Application
  • Contact Us

Agency protests: An emerging tool and potential threat for contractors

July 25, 2019 By Andrew Smith

In May 2018, the Government Accountability Office (“GAO”) implemented a $350 filing fee for bid protests.  There are differences of opinion regarding why GAO implemented the fee.  GAO publicly states that the fee was implemented to cover the costs of its new Electronic Protest Docket System (“EPDS”).  Many, however, believe the fee was implemented to deter the filing of frivolous protests.  Regardless, there “may” be an unintended consequence of the protest filing fee—an increase in agency-level protests.  Recently, several agency contracting officers have stated that they are handling more agency protests, and, in their opinion, it is a direct result of GAO’s protest filing fee.  As a result, contractors should understand and be prepared to mitigate the risk of agency protests to protect their contracts and position themselves for new ones.

Pros and Cons of Agency Protests

Beyond not having to pay a filing fee, there are pros (and cons) to filing an agency protest as opposed to a protest at GAO.  Unlike at GAO, in agency protests, the agency is not required to file an agency report or produce documents; thus, there is no opportunity to review the agency’s decision-making process or file a supplemental agency protest.  And, at the agency level, a protester does not get the opportunity to file Comments (i.e., rebut the agency’s legal position) on the agency’s report like it would get at GAO.  As a result, a protester’s legal bills will be lower with an agency protest and you may receive an agency protest decision faster than at GAO (35 days vs. 100 days).  Also, some believe filing an agency protest is favorable in terms of client relations.  When you file a protest you essentially are suing your client or potential client.  An agency protest is not a public filing like a protest filed at GAO.  Thus, some believe a contractor benefits by filing an agency protest and not publicly airing an agency’s so-called dirty laundry at GAO.  Finally, with one important caveat, an agency protest could be useful if a protester intends to elevate the protest to GAO or the Court of Federal Claims.  Federal Acquisition Regulation 33.103 requires an agency to provide agency-protest decisions that are “well-reasoned, and explain the agency’s position.”  If a protester receives an unfavorable agency-protest decision, the protester can use the information obtained from the decision to strengthen its arguments at GAO or the Court of Federal Claims.  However, a contractor should keep in mind that, if its agency protest is unsuccessful, an automatic stay will not be available at GAO.

Continue reading at:  BlankRome

Filed Under: Contracting Tips Tagged With: agency protest, bid protest, GAO, protest

Recent Posts

  • Podcast: Buy American executive order and recent changes
  • Podcast: Contractors say they’re seeing a resurgence of LPTA procurements
  • Reminder: If pricing is too high, VA “rule of two” might not apply
  • CPARS challenges: No appeals without contracting officer claim
  • GAO: In “best value” procurement agency has wide discretion to pay price premium

Popular Topics

8(a) abuse Army bid protest budget budget cuts certification construction contract awards contracting opportunities cybersecurity DoD DOJ False Claims Act FAR federal contracting federal contracts fraud GAO Georgia Tech government contracting government contract training government trends GSA GSA Schedule GTPAC HUBZone innovation IT Justice Dept. marketing NDAA OMB SBA SDVOSB set-aside small business small business goals spending subcontracting technology VA veteran owned business VOSB wosb

Contracting News

Podcast: Contractors say they’re seeing a resurgence of LPTA procurements

CPARS challenges: No appeals without contracting officer claim

GAO: In “best value” procurement agency has wide discretion to pay price premium

Contractor settles fraud claims related to 8(a) joint venture

Senator: Pandemic makes anti-fraud law more important than ever

Read More

Contracting Tips

Podcast: Buy American executive order and recent changes

Reminder: If pricing is too high, VA “rule of two” might not apply

Startups should try to win city and school district contracts. Here’s why.

Surviving proposal weaknesses after discussions: what not to do

E-Verify records purge scheduled for May 14, 2021

Read More

GTPAC News

DLA hosting event March 10th with special emphasis on Women-Owned Small Businesses

Navy Office of Small Business Programs holding three events in March

SBA hosting conversations with contracting officers forum Feb. 25th

USACE seeks vaccination center construction support

GTPAC updates cybersecurity resource page to include CMMC guidance

Read More

Georgia Tech News

Future of 5G is under the microscope at Georgia incubator

Collective worm and robot “blobs” protect individuals, swarm together

The Partnership for Inclusive Innovation is now accepting applications for pilot programs

Georgia Tech will help manage DOE’s Savannah River National Laboratory

Dr. Abdallah testifies on U.S. competitiveness, research, STEM pipeline at Congressional hearing

Read More

  • SAM.gov registration is free, and help with SAM is free, too
APTAC RSS Twitter GTPAC - 30th Year of Service

Copyright © 2021 · Georgia Tech - Enterprise Innovation Institute