Bid Protest
June 01, 2018

The CO Ignored Your Agency-Level Protest ..... Now What?

Filing a timely agency-level protest can be an inexpensive, expeditious way to resolve a procurement issue directly with the Contracting Officer.

The agency is required to make its “best efforts to resolve agency protests within 35 days after the protest is filed,”1 and to provide the protester with a “well-reasoned” decision that “explain[s] the agency position."2 

Should this decision prove to be adverse, a protester may then file with the GAO on the same issues within 10 calendar days of the agency decision.3

But what if 35 days come and go and the CO issues no decision while ignoring your emails asking for an ETA on the decision? Do you:

  • (A) Wait it out, hoping for the best from the agency, or
  • (B) Proceed directly to the GAO?

If you answered B – you get a gold star!

The GAO has stated, “A protester may not delay filing a protest with our Office until it eventually receives a decision from the contracting agency. Rather, a protester may wait only a reasonable length of time for a contracting agency’s response before filing a protest. In this regard, our Office has found that waiting 90 days to file a protest with our Office after filing an agency-level protest is not reasonable.”4

Protesters who file at the GAO after having waited too long for that agency decision see their protests dismissed as untimely filed, with no consideration of their actual complaint against the agency.

This information, however, appears nowhere in the GAO’s bid protest regulations, the source of information available to protesters without counsel.

Pitfalls like this can occur when filing and prosecuting either agency-level or GAO protests.

To protect your interests, seek experienced counsel as soon as you believe you may have a procurement issue. Contact the professionals at FH+H here.

1. 48 C.F.R. § 33.103(g)
2. § 33.103(h)
3. 21 C.F.R. § 21.2(a)(3); Office Design Grp.., B-415411, 2018 WL 704317, at *4 (Comp. Gen. Jan. 3, 2018)
4. Bart & Assocs., Inc., B-414234 et al., 2017 WL 839519, at *3 (Comp. Gen. Feb. 24, 2017) (citing Excel Envtl., B-242577, 1991 WL 72885 (Comp. Gen. Jan. 28, 1991))

About the Authors

GOVCON University Blog authors Milt Johns, Partner, and Rachel Leahey, Associate, lead FH+H's Government Contracts Practice. Focusing on the middle market, Milt and Rachel help guide government contractors through the maze of applicable rules and regulations to enable corporate success, now and in the future.

Additional information regarding their capabilities and previous representations can be found here.

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