FAR 33.102—General.
Plain-English Summary
FAR 33.102 is the general framework for how the Government handles bid protests and related remedies. It covers the contracting officer’s duty to consider protests and obtain legal advice regardless of where the protest is filed; the agency head’s authority to take corrective action, pay protest costs, and seek reimbursement from an awardee in limited cases; the special rule that keeps certain expiring funds available during a GAO protest; the contracting officer’s authority to stay performance when a protest is likely after award; the preference for resolving protests within the agency before going to GAO; and the rule barring GAO protests based on procurement integrity violations unless the protester first reported the violation to the contracting officer within 14 days of discovery. In practice, this section matters because it tells agencies how to respond quickly and lawfully to protests, how to preserve funds and performance status while a protest is pending, and when the Government may recover costs from a contractor whose misstatement, misrepresentation, or miscertification contributed to a sustained protest. It also sets an important procedural gate for procurement integrity complaints and reinforces that protest handling is not just a legal issue but a contract administration and risk-management issue. For contractors, it highlights the importance of accurate certifications, timely reporting of integrity concerns, and understanding that agency-level resolution may be available before external protest forums are used.
Key Rules
Consider all protests
Contracting officers must consider protests regardless of whether they are filed before or after award and regardless of whether they are filed with the agency, GAO, or the Court of Federal Claims. They must also seek legal advice, which makes protest handling a coordinated legal and acquisition function rather than a purely administrative one.
Agency corrective authority
If the head of the agency determines that a solicitation, proposed award, or award violates law or regulation, the agency may take corrective action that GAO could have recommended if the protest had been filed there. This gives the agency broad flexibility to fix procurement errors without waiting for a GAO recommendation.
Pay protest costs
The agency may pay appropriate protest costs as allowed under FAR 33.104(h). This is part of the agency’s remedial authority when a protest reveals that the Government’s procurement actions were improper.
Recover costs from awardee
For a sustained postaward protest caused by an awardee’s intentional or negligent misstatement, misrepresentation, or miscertification, the agency may require the awardee to reimburse the Government’s protest costs. The Government may collect the debt by offset against amounts otherwise due, subject to debt collection requirements in subpart 32.6.
Review reimbursement claims carefully
Before seeking reimbursement, the contracting officer must assess whether the protest was sustained because of the awardee’s negligent or intentional conduct, apportion costs if multiple protest grounds were sustained, and weigh the debt amount, fault, and collection costs. The contractor must receive written notice, an opportunity to inspect and copy relevant records, and an opportunity to request review by the head of the contracting activity.
Refer misconduct when appropriate
If the facts warrant, the contracting officer should refer the matter to the agency suspending and debarring official for possible action under FAR subpart 9.4. This recognizes that protest-related misconduct may also raise responsibility and integrity concerns beyond cost recovery.
Preserve expiring funds during GAO protest
Under 31 U.S.C. 1558, if funds available for a contract would otherwise expire when a GAO protest is filed, those funds remain available for obligation for 100 days after the final ruling on the protest. A ruling becomes final when the time for appeal or reconsideration expires, or when any appeal or reconsideration decision is issued, whichever is later.
Stay performance when protest likely
The contracting officer may stay performance within the time period in FAR 33.104(c)(1) if there is a written determination that a protest is likely and that delaying performance is in the best interests of the United States. This is a discretionary tool to prevent avoidable disruption or prejudice while a protest is expected.
Use agency-level resolution first
An interested party is encouraged to seek resolution within the agency before filing at GAO, although the party may still file with GAO under its rules. The policy favors early, internal resolution where possible.
Report procurement integrity violations promptly
No person may file a GAO protest alleging a procurement integrity violation unless that person reported the evidence to the contracting officer within 14 days after first discovering the possible violation. This creates a strict prerequisite for GAO review of such allegations.
Responsibilities
Contracting Officer
Consider all protests received or known to the agency, regardless of forum or timing, and seek legal advice. Evaluate whether to stay performance when a protest is likely, determine whether reimbursement of protest costs should be sought, notify the contractor in writing if collection is pursued, allow record inspection and copying as permitted, and provide an opportunity for review by the head of the contracting activity. Refer appropriate cases to the suspending and debarring official.
Head of Agency
When a protest shows that a solicitation, proposed award, or award does not comply with law or regulation, decide whether to take corrective action, pay appropriate protest costs, and authorize recovery of protest costs from an awardee when the statutory and regulatory conditions are met.
Awardee / Contractor
Avoid intentional or negligent misstatements, misrepresentations, and miscertifications that could lead to protest sustain and cost recovery. If notified of a debt, review the agency’s claim, inspect and copy relevant records as allowed, and use the available review process if desired.
Interested Party / Protester
Consider seeking agency-level resolution before filing at GAO. If alleging a procurement integrity violation, report the evidence to the contracting officer within 14 days of discovering the possible violation before filing a GAO protest on that ground.
Agency Suspending and Debarring Official
Review referred matters for possible suspension or debarment when the protest-related conduct suggests integrity or responsibility concerns under FAR subpart 9.4.
GAO
Adjudicate protests under its own procedures, including protests involving procurement integrity violations only when the statutory reporting prerequisite has been satisfied.
Practical Implications
Contracting officers need to treat protest intake as urgent and cross-functional: legal review, acquisition action, and documentation all matter immediately.
A sustained protest can lead not only to corrective action but also to cost recovery against the awardee if the awardee’s own false or careless statements contributed to the problem.
If a protest is filed at GAO near the end of a funding period, agencies must watch the 100-day availability rule so they do not mistakenly let funds lapse too early.
The decision to stay performance is discretionary but must be documented in writing and tied to both likely protest activity and the Government’s best interests.
Contractors should be careful with certifications and representations, because errors can create both protest risk and potential debt collection or suspension/debarment exposure.
Official Regulatory Text
(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 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 ( 41 U.S.C. 2106 ).