The Pros and Cons of Agency-Level Protests
In my previous post, I wrote about the basics of an agency-level protest. In this post, I will explore some of the main advantages and disadvantages of filing an agency-level protest.
So, what are the benefits of filing an agency-level protest? First, they do tend to be quicker and less expensive than GAO or COFC protests, and they allow protestors a second opportunity to pursue their protest at GAO or COFC. In other words, an agency-level protest may let a protestor test the waters before all-out committing to the cost associated with a GAO or COFC protest.
Second, these protests are not public and allow offerors to address concerns they may have with the procurement directly (and mostly in private) with the agency. Some may even argue that this may help preserve the contractor’s relationship with the contracting agency by not making a public spectacle of the procurement issues.
And third, the agency may not have a process to receive comments from the awardee and would-be intervenor, making it easier to persuade the agency the contractor’s position is correct.
There are significant downsides, too. First, these are done entirely within the agency and may even be handled at the contracting officer level. There is the risk that the agency takes a biased view (especially if the ones deciding the protest are the ones who conducted the procurement) and denies an otherwise strong protest. While this certainly may not always be the case, it’s not hard to imagine an agency official taking an unfavorable view of a protest alleging the procurement was flawed when they spent the last several months (or years) doing everything they could to make sure it was done by the book.
Second, agency-level protests are not likely to be decided before the GAO stay deadline expires. It also is not always clear when the general GAO 10-day timeline begins because the rule under 21 CFR § 21.2(a)(3) is within 10 days of actual or constructive knowledge of initial “adverse agency action,” i.e., “any action or inaction by an agency that is prejudicial to the position taken in a protest filed with the agency.” In practice, this standard can be very difficult to gauge and may lead to the GAO deadline expiring well before there ever is a written decision from the agency.
Third, there is no general obligation to provide procurement documents to the protestor’s counsel under a protective order, meaning there is little, if any, opportunity for the protestor to find additional material to support the original protest grounds or to raise in a supplemental protest. This can be especially bad for a protestor if the initial protest is flimsy or is easily rebutted by specific documents that were not released when the award was announced.
Fourth, decisions are not published, and the protestor has no way of seeing whether the agency ever takes corrective action or routinely denies agency-level protests. Unlike GAO or COFC, protestors have no insight into how the agency goes about deciding these protests and whether it is even worth the protestor’s time to raise the issues at the agency level.
And fifth, because the agency is responsible for crafting the award, it is rare to see an agency agree to pay the protestor’s attorneys’ fees when the protest leads to corrective action. This could mean even a strong protest may lead to additional, unanticipated costs by the protestor for a contract they may or may not win (at least in the context of pre-award, agency-level protests).
Although agency-level protests do not afford the same protections potentially available at GAO and COFC, they still may serve a useful purpose, especially in the pre-award context. Protestors that don’t want to overturn the apple cart before the agency has even had a chance to evaluate proposals may elect to file a pre-award, agency-level protest to alert the agency to the issue and hopefully have it favorably resolved without resorting to a public protest. Offerors may also consider an agency-level protest in all contexts if there is a single discrete and obvious issue that the offeror is confident the agency will correct. While agency-level protests may not always be the right decision strategically, they are a valuable tool in the contractor’s arsenal.