This series of FAR summaries is meant to take a meaningful portion of the Federal Acquisition Regulations to ensure an easy-to-understand approach to maintain that readers comprehend the process of doing business with the government and that the government exercises a fair and reasonable approach to doing business with the general public.
FAR 33 Protests, Disputes, and Appeals
This short FAR part is packed with useful information for offerors and awardees to ask why or why not. That being said, the processes are often abused due to their free nature or low cost to the company while creating a mountain of paperwork for the government often due to entitlements stemming from a good ol’ boys network mentality because a senior level executive supplied a business card at a conference or a company has the highest grossing revenue in a legislator’s district. However, the company has every right to issue a protest, dispute or appeal regarding the government’s decision. This can be alleviated if the Contracting Officer proceeds with honesty and openness from the outset of the project. To my knowledge, my decisions were never protested. I had one dispute due to improper usage of my base contract by a federal hospital on the east coast and no appeals via trial were held concerning my decisions of 9.5 years of contract writing of a portfolio amassing over $1B. I am trust personified.
Per FAR 33.103(b) any conflict is to be handled through the CO, first. Supervisory COs and legal teams may also be involved to seek advice from a neutral party. COs are to let vendors know that an independent agency review is available to them (FAR 33.103(c)).
If the conflict is not settled at the lowest level then a protest to GAO is available (FAR 33.104). These protests concerning award decisions are made public on their website. Just look how many are dismissed,but they are great for professional reading on the subject of federal contracting. I recommend a regular perusal to become familiar with current trends.
The U.S. Court of Federal Claims is also an option (FAR 33.105).
If a financial claim is brought to the attention of the CO then it is to be handled at the lowest level and the awardee has six (6) years after the event of the claim to be made whole (FAR 33.206(a)).
Understand that the CO is very much the judge and jury (FAR 33.210) and are widely respected by outside legal jurisdiction(s). So, if you are going to protest, dispute or appeal and you don’t want egg on your face then you better have your ducks in a row because the CO is thoroughly trained and well respected.
Furthermore, a filing does not stop contract performance (FAR 33.213).
I had no protests or appeals but I did have one dispute. A government hospital used one of my awards to fill out their staff. Time was of the essence and the vendor could answer their ask but with a different profession which showed a higher hourly wage than the originally sought profession which the company also offered which was at a lower rate. The CO awarded at the higher cost but the government sought reimbursement. The pay dispute was handled at the lowest level with neutral party and legal advisement while the CO at the ordering facility cited administrative burden due to intense workload and extreme time constraints and the vendor neglected corporate responsibility of correcting the CO out of assumed greed.
If you think I can help you then email nicholas.s.robertson@outlook.com for your introductory email and free consultation.
RobertsonKX Business Blog 