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Federal Register / Vol. 86, No. 13 / Friday, January 22, 2021 / Notices
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United States Court of Federal Claims COFC,7 and depending on where the protest is initiated, may be able to file protests in series. For example, a protest may be filed first at the agency, then if unsuccessful at the agency at GAO, and then if again unsuccessful at COFC.8 The procedural tools available in a given forum, along with other strategic and cost considerations, typically drive vendors decisions about where to file their bid protests.
Bid protests filed with procuring agencies are commonly referred to as agency-level protests. Agency-level protests have important benefits for the public, contractors, procuring agencies, and COFC and GAO. By providing for inexpensive, informal, procedurally simple, and expeditious resolution of protests, 9 agency-level protest mechanisms allow small businesses among other vendors to affordably contest agencies procurement decisions. They also give procuring agencies the chance to review and improve their own procurement practices.
And they funnel some protests away from COFC and GAO, reducing the likelihood that the number of protests will overwhelm those institutions.
Vendors, however, seldom file agency-level protests. Although there is little data on the number of agency-level protests filed each year, available evidence suggests that substantially more protests are filed with COFC and GAO each year than with procuring agencies.10 There are several reasons why vendors may forego agency-level protests. Those reasons implicate the themes of transparency, predictability, and accountability.
First, some vendors report shying away from agency-level protests because they perceive the agency as unlikely to change its decision.11 Sometimes, for instance, the official responsible for soliciting or awarding a procurement contract is also responsible for handling any agency-level protests that are filed regarding the procurement. This perception of a pre-judgment by the agency may cause some vendors to file their protests at GAO or COFC, rather than at the agency level.
Second, some vendors report that they view agency-level protest processes as opaque.12 Agencies do not publish or provide comprehensive data on their bid protest decisions. And the FAR and agency-specific bid protest rules establish few hard-and-fast the order increases the scope, period, or maximum value of the contract. See 41 U.S.C. 4106f; 48 CFR
16.505a10.
7 See 28 U.S.C. 1491b.
8 See Admin. Conf. of the U.S., Info. Interchange Bull. No. 007, Agency Bid Protests June 2020, https www.acus.gov/fact-sheet/iib-007-agency-bidprotests.
9 See Exec. Order. No. 12,979, Agency Procurement Protests, 60 FR 55,171, 55,171 Oct.
25, 1995.
10 See Christopher Yukins, Stepping Stones to Reform: Making Agency-Level Bid Protests Effective for Agencies and Bidders by Building on Best Practices from Across the Federal Government 12
13 May 1, 2020 report to the Admin. Conf. of the U.S., https www.acus.gov/report/agency-levelbid-protests-final-report.
11 Id. at 23.
12 Id. at 13.

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requirements for the process. For example, although the FAR states that agencies shall make their best efforts to resolve agency protests within 35 days after an agency-level protest is filed, 13 that language is hortatory and does not establish any binding deadlines for agency decisions. Nothing in the FAR
does. The failure to provide for any binding deadlines distinguishes the FAR from other federal procurement statutes, such as the Contract Disputes Act,14 which sets or requires contracting officers to set firm deadlines for deciding most claims 15 and provides that the passage of the deadline for a claim means the claim is deemed denied.16
Third, some vendors report being dissuaded by their inability to compel production of the procurement record as part of an agency-level protest.17 The FAR gives disappointed offerors the right to an agency debriefinga procedure whereby contracting personnel provide offerors with an explanation of the agencys evaluation process and an assessment of the offerors proposals. But nothing in the FAR guarantees vendors the right to view the procurement record itself. The FAR provides only that agencies may exchange relevant information with agency-level protesters.18
By contrast, vendors who file bid protests at GAO may demand to see the entire record of the procurement, and procuring agencies must respond to such requests within twenty-five days and produce the responsive documents within thirty days unless they are withheld for a valid reason.19
Finally, some vendors deem agency-level protests to be too risky.20 In many cases, vendors who do not obtain relief through an agency-level protest will seek relief from GAO by pursuing their protest in that forum.
But GAOs deadline for filing such followon protests often begins to run as soon as the vendor has actual or constructive notice of some adverse agency action, which can occur before a protester receives the decision in its agency-level protest.21 In this way, delayed notification about an agencys decision in a bid protest can seriously prejudice protesters rights at GAO.22 This causes some vendors to forego agency-level protests altogether.23
The perception that agency-level protests lack transparency, predictability, and accountability also makes it more likely that protesters who do file at the agency level and whose protests are denied will file follow-on protests with GAO or COFC. Such follow-on protests not only tax the limited resources of GAO and COFC, but also can disrupt activities at procuring agencies. For instance, just as the filing of an agency-level protest automatically prohibits the contract from being awarded or performed until the agency 13 48

CFR 33.103g.
14 41 U.S.C. 710109.
15 See id. 7103f12.
16 See id. 605c5.
17 Yukins, supra note 10, at 39.
18 48 CFR 33.103g italics added.
19 4 CFR 21.3cd; 48 CFR 33.104a.
20 Yukins, supra note 10, at 31.
21 See 4 CFR 21.0e, 21.2.
22 See Yukins, supra note 10, at 1314, 1819.
23 See id. at 23.

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denies or dismisses the protest and takes some adverse action,24 a follow-on protest at GAO may automatically prevent the contract from being awarded or performed if the requisite filing deadlines are met until GAO
denies or dismisses the protest.25 Thus, when an agency-level protest is followed by another protest at GAO, delays in procurements can be substantial.
Protesters, agencies, and the public would all benefit from an improved agency-level protest system. Protesters would benefit because agency-level protests are typically the least formal and least costly types of bid protest procedures. Agencies would benefit from an improved agency-level protest system because greater use of agency-level protests means more agency control over the timing and conduct of protests and more opportunities for agencies to superintend their own procurement processes. And the public would benefit from more competitive, fairer, and more transparent agency procurements.
Because an improved agency-level protest system is of significant value to contractors, agencies, and the public, this Recommendation identifies changes to make it more likely vendors will avail themselves of agency-level protest procedures. The recommended changes reflect three overarching principlestransparency, simplicity, and predictabilitymeant to address contractors principal concerns about agency-level protest systems.
Recommendation Identification of Decisions Subject to Agency-Level Protests 1. Agencies should clearly identify which categories of procurement decisions may or may not be made the subjects of agency-level protests.
Transparency for the Process and Personnel for Agency-Level Protests 2. Agencies should formalize and compile in a document that is publicly available online the procedures they apply in adjudicating agency-level protests. In so doing, they should be guided by the principles set out in Recommendation 2018
5, Public Availability of Adjudication Rules.
3. Agencies should clearly identify who within the agency will adjudicate an agencylevel protest. They should consider designating at least one Agency Protest Official APOa person who specializes in handling agency-level proteststo oversee and coordinate agency-level protests and hear protests brought to a level above the contracting officer. Agencies lacking the resources to designate their own APO might consider sharing an APO with other agencies.
Notice of the Timeline for Agency-Level Protests 4. Agencies should consider adopting presumptive timelines for agency-level 24 48 CFR 33.103f. Under certain circumstances, the agency can override the regulatory stay for agency-level protests. See 48 CFR 33.103f1, f3.
25 31 U.S.C. 3553c1, d3. Under certain circumstances, the agency can override the statutory stay for protests to GAO. See 31 U.S.C.
3553cd; 48 CFR 33.104bc.

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