33.102 General
Source: FAR 33.102 on acquisition.gov
Contracting officers must consider all protests, ensure legal compliance, and manage protest-related costs and remedies, while contractors must act promptly and honestly to protect their interests.
Overview
FAR 33.102 outlines the general procedures and responsibilities related to handling protests in federal contracting. It requires contracting officers to consider all protests, regardless of where or when they are filed, and to seek legal advice. The section details actions the agency head may take if a solicitation or award is found noncompliant, including taking corrective action, paying costs, or seeking reimbursement from an awardee in cases of misrepresentation. It also addresses the handling of funds during protests, the possibility of staying contract performance if a protest is likely, and encourages resolution within the agency before escalating to the GAO. Additionally, it sets a 14-day reporting requirement for procurement integrity violations before a protest can be filed at GAO.
Key Rules
- Consideration of All Protests
- Contracting officers must consider all protests and seek legal advice, regardless of timing or venue.
- Agency Actions on Noncompliance
- The agency head may take corrective action, pay costs, or seek reimbursement from the awardee for misrepresentation.
- Handling of Protest Costs
- If a protest is sustained due to awardee misrepresentation, the government may offset costs against payments due to the awardee.
- Availability of Funds During Protests
- Funds for protested contracts remain available for 100 days after a final ruling by GAO.
- Staying Performance
- Contracting officers may stay contract performance if a protest is likely and delay is in the government's best interest.
- Encouragement of Agency-Level Resolution
- Protesters are encouraged to seek agency resolution before going to GAO.
- Procurement Integrity Violation Reporting
- Protests at GAO for procurement integrity violations require reporting to the contracting officer within 14 days of discovery.
Responsibilities
- Contracting Officers: Must consider all protests, seek legal advice, determine actions on sustained protests, manage protest costs, and notify contractors of debts.
- Contractors: Must avoid misrepresentation, report procurement integrity violations within 14 days, and may be required to reimburse costs if at fault.
- Agencies: Must ensure proper handling of protests, funds, and potential referrals for suspension or debarment.
Practical Implications
- This section ensures fairness and accountability in the protest process, protecting both government and contractor interests.
- Contractors must be diligent in compliance and timely in reporting violations to preserve protest rights.
- Failure to follow procedures can result in financial liability, contract delays, or loss of protest rights.
(a) Without regard to the protest venue, contracting officers shall consider all protests and seek legal advice, whether protests are submitted before or after award and whether filed directly with the agency, the Government Accountability Office (GAO), or the U.S. Court of Federal Claims. (See 19.302 for protests of small business status, 19.305 for protests of disadvantaged business status, 19.306 for protests of HUBZone small business status, and 19.307 for protests of service-disabled veteran-owned small business status, and M) for protests of the status of an economically disadvantaged women-owned small business concern or of a women-owned small business concern eligible under the Women-Owned Small Business Program.)
(b) If, in connection with a protest, the head of an agency determines that a solicitation, proposed award, or award does not comply with the requirements of law or regulation, the head of the agency may-
(1) Take any action that could have been recommended by the Comptroller General had the protest been filed with the Government Accountability Office;
(2) Pay appropriate costs as stated in 33.104(h); and
(3) Require the awardee to reimburse the Government’s costs, as provided in this paragraph, where a postaward protest is sustained as the result of an awardee’s intentional or negligent misstatement, misrepresentation, or miscertification. In addition to any other remedy available, and pursuant to the requirements of subpart 32.6, the Government may collect this debt by offsetting the amount against any payment due the awardee under any contract between the awardee and the Government.
(i) When a protest is sustained by GAO under circumstances that may allow the Government to seek reimbursement for protest costs, the contracting officer will determine whether the protest was sustained based on the awardee’s negligent or intentional misrepresentation. If the protest was sustained on several issues, protest costs shall be apportioned according to the costs attributable to the awardee’s actions.
(ii) The contracting officer shall review the amount of the debt, degree of the awardee’s fault, and costs of collection, to determine whether a demand for reimbursement ought to be made. If it is in the best interests of the Government to seek reimbursement, the contracting officer shall notify the contractor in writing of the nature and amount of the debt, and the intention to collect by offset if necessary. Prior to issuing a final decision, the contracting officer shall afford the contractor an opportunity to inspect and copy agency records pertaining to the debt to the extent permitted by statute and regulation, and to request review of the matter by the head of the contracting activity.
(iii) When appropriate, the contracting officer shall also refer the matter to the agency suspending and debarring official for consideration under subpart 9.4.
(c) In accordance with http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title31-section1558&num=0&edition=prelim" target="_blank">31 U.S.C.1558, with respect to any protest filed with the GAO, if the funds available to the agency for a contract at the time a protest is filed in connection with a solicitation for, proposed award of, or award of such a contract would otherwise expire, such funds shall remain available for obligation for 100 days after the date on which the final ruling is made on the protest. A ruling is considered final on the date on which the time allowed for filing an appeal or request for reconsideration has expired, or the date on which a decision is rendered on such appeal or request, whichever is later.
(d) Protest likely after award. The contracting officer may stay performance of a contract within the time period contained in paragraph 33.104(c)(1) if the contracting officer makes a written determination that-
(1) A protest is likely to be filed; and
(2) Delay of performance is, under the circumstances, in the best interests of the United States.
(e) An interested party wishing to protest is encouraged to seek resolution within the agency (see 33.103) before filing a protest with the GAO, but may protest to the GAO in accordance with GAO regulations (4 CFR Part 21).
(f) No person may file a protest at GAO for a procurement integrity violation unless that person reported to the contracting officer the information constituting evidence of the violation within 14 days after the person first discovered the possible violation (http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title41-section2106&num=0&edition=prelim" target="_blank">41 U.S.C. 2106).