FAR Companion Part 33

Part 33 - Protests, Disputes, and Appeals

FC33.103 FC 33.103 Solicitation clarity and execution.

The most effective protest defense involves having a clear solicitation and following what you say you will do. Many protest issues may be preventable through proper execution against your solicitation requirements. Complex evaluation schemes with multiple factors, subfactors, and unclear evaluation criteria carry higher protest risk. Avoid using overtly constraining language that limits the government's permissible discretion during evaluation or source selection.

FC33.103 FC 33.103 Technical evaluation safeguards.

To ensure a defensible position during trade-off evaluations, precisely follow the solicitation evaluation criteria. Deviations from the stated methodology or the evaluation of unstated criteria is likely to lead to potential protests. When proposals offer capabilities beyond requirements, it is important to document whether these enhancements add value or are unnecessary. Strengthen the evaluation record by ensuring ratings align with solicitation definitions and are supported by specific rationale. Federal Acquisition Regulation (FAR) Companion FC33.103 FC 33.103 Documentation practices. Direct, succinct, and bulleted documentation makes it easier to assess and understand the rationale for government decisions. Maintaining clear contemporaneous records of evaluation rationale, decision points, and supporting analysis provides the foundation for defending award decisions.

FC33.103(b)(3) FC 33.103(b)(3) Referral to the agency suspending and debarring official.

If a post-award protest is upheld due to an awardee's intentional or negligent misstatement, misrepresentation, or miscertification, the contracting officer should consider referring the issue to the agency's suspending and debarring official for review under FAR subpart 9.4. FC33.105-1 FC 33.105-1 Protests to GAO. GAO publishes and maintains an informal, practical guide to the bid protest process. It is available at Bid Protests at GAO: A Descriptive Guide (Tenth Edition, 2018) | U.S. GAO.

FC33.105-3 FC 33.105-3 Strategic management of award notice, debriefing, notices, debriefings, brief explanations, and protest window. windows.

To avoid unnecessarily extending the protest window, the acquisition team led by the contracting officer should prepare to quickly provide debriefings when requested after making award decisions and notifying unsuccessful offerors. This timing consideration is relevant because unsuccessful offerors generally have 10 calendar days to file a GAO bid protest from the date the basis of protest is known. Note that an automatic stay of performance at GAO is 10 days after contract award or within 5 days of a debriefing date offered. Please note that if the last day of the computation period is a Saturday, Sunday, or Federal holiday, then the deadline for filing is the next day the protest venue (e.g., GAO, soliciting agency) is open. Additionally, when a "brief explanation" of the award decision is required (as opposed to a debriefing), such as when awarding an order under the Federal Supply Schedule or using FAR part 12 request for quotations procedures (see FAR 12.201-1), consider including a the "brief Federal Acquisition Regulation (FAR) Companion explanation" in the award notice. This approach may start the GAO 10-day bid protest clock, marking the point at which "the basis of protest is known or should have been known."

FC33.105-3 FC 33.105-3 Debriefing best practices.

When debriefings are required and requested, the acquisition team led by the contracting officer might consider providing technical evaluation documentation relevant to the requesting vendor. Providing this transparency may reduce the likelihood of protests due to lack of information. Debriefings should be framed as opportunities for vendors to learn for future proposal development and for the government to improve future solicitation preparation.

FC33.205-6 FC 33.205-6 Contracting officer's duties upon appeal.

The contracting officer should provide the agency Board of Contract Appeals (BCA) with necessary data, documentation, information, and support for a pending appeal stemming from the contracting officer's decision, as permitted by agency procedures governing contact with BCA personnel. Federal Acquisition Regulation (FAR) Companion FC33.205-8 FC 33.205-8 Alternative dispute resolution (ADR). Contracting officers may choose the most suitable Alternative Dispute Resolution (ADR) procedure to address issues as they emerge. Legal consultation should be sought when necessary.