FAR 33.103—Protests to the agency.
Plain-English Summary
FAR 33.103 sets out the government-wide framework for agency-level bid and proposal protests. It covers the policy basis for agency protests, the expectation that parties first try to resolve concerns at the contracting officer level, the agency’s duty to provide an inexpensive and informal protest process, and the use of alternative dispute resolution, third-party neutrals, and personnel from another agency. It also specifies what a protest must contain, where it must be filed, and when an independent higher-level review may be available. The section establishes timeliness rules for protests based on solicitation improprieties and other protest grounds, and it explains when a protest triggers a pre-award award hold or a post-award suspension of performance. Finally, it addresses agency efforts to resolve protests within 35 days, the exchange of relevant information, and the requirement for a well-reasoned written decision delivered in a way that proves receipt. In practice, this section is designed to resolve disputes quickly and locally when possible, reduce unnecessary filings at GAO, and protect the integrity and efficiency of the acquisition process while preserving protester rights.
Key Rules
Resolve issues early
Before filing an agency protest, parties must use their best efforts to resolve concerns at the contracting officer level through open and frank discussions. This reflects a strong preference for informal resolution before a formal protest is pursued.
Keep the process simple
Agencies should provide an inexpensive, informal, procedurally simple, and expeditious protest process. Agencies may use ADR, third-party neutrals, and personnel from another agency when appropriate.
Protests must be complete
Agency protests must be concise and logically presented, and failure to substantially comply with the required content may be grounds for dismissal. Required information includes the protester’s contact information, solicitation or contract number, detailed legal and factual grounds, relevant documents, requested ruling and relief, and information showing interested-party status and timeliness.
File with the right official
Protests filed directly with the agency must be addressed to the contracting officer or another designated official. Agencies may also provide an independent higher-level review process, and solicitations should tell offerors whether that review is available and whether it is an alternative to CO review or an appeal of the CO’s decision.
Follow strict timeliness rules
Protests alleging apparent solicitation improprieties must be filed before bid opening or the closing date for receipt of proposals. All other protests generally must be filed within 10 days after the basis of protest is known or should have been known, unless the agency decides to consider an untimely protest for good cause or because it raises significant issues.
Pre-award protests can stop award
When a protest is received before award, the agency generally may not award the contract until the protest is resolved, unless award is justified in writing for urgent and compelling reasons or because it is in the Government’s best interest. That justification must be approved above the contracting officer or by another authorized official.
Post-award protests can suspend performance
If a protest is received within 10 days after award, or within 5 days after a required debriefing date under a timely debriefing request, the contracting officer must immediately suspend performance unless continued performance is justified in writing for urgent and compelling reasons or best interest of the Government. The written approval must come from a higher level or another authorized official.
Agency protest does not preserve GAO rights
Filing an agency protest does not extend GAO timeliness requirements. If the agency uses an appellate review process, a later GAO protest still must be filed within 10 days of knowledge of initial adverse agency action, and agencies may optionally provide a voluntary suspension period after denial if the protester goes to GAO.
Resolve quickly and explain clearly
Agencies must make their best efforts to resolve protests within 35 days after filing and may exchange relevant information to the extent allowed by law and regulation. Agency protest decisions must be well-reasoned, explain the agency’s position, and be sent in a way that provides evidence of receipt.
Responsibilities
Contracting Officer
Engage in open and frank discussions to try to resolve concerns before a protest is filed; receive protests or ensure they are routed to the designated official; manage pre-award and post-award protest actions, including withholding award or suspending performance when required; notify affected offerors when award is withheld; seek offer extensions when appropriate; prepare or support the agency’s protest decision; and ensure the decision is delivered with proof of receipt.
Protester / Interested Party
Attempt to resolve concerns at the contracting officer level before filing; submit a concise protest that includes all required information; file with the proper agency official; meet the applicable timeliness rules; establish interested-party status and timeliness; and, if seeking GAO review after agency action, file within GAO’s separate deadlines.
Agency
Provide an inexpensive, informal, procedurally simple, and expeditious protest process; establish procedures for independent higher-level review where available; identify the officials who will conduct that review; consider ADR and other informal resolution methods; make best efforts to resolve protests within 35 days; exchange relevant information when permitted; and issue well-reasoned decisions with proof of receipt.
Higher-Level Reviewing Official
Conduct independent review when the agency’s procedures provide for it; remain sufficiently detached from the procurement when practicable; and decide the protest under the agency’s designated review process, whether as an alternative to CO review or as an appeal of the CO’s decision.
Approving Official Above the Contracting Officer
Approve any written determination to proceed with award despite a pre-award protest or to continue performance despite a post-award protest, when justified by urgent and compelling reasons or the Government’s best interest.
Offerors / Potential Bidders
Monitor solicitations for protest procedures and independent review options; respond to requests to extend acceptance periods when award is withheld; and, if affected by a protest, understand that agency-level filing does not stop GAO filing deadlines.
Practical Implications
Agency protests are meant to be fast and local, so incomplete or poorly organized filings are vulnerable to dismissal and delay resolution.
Timeliness is critical: apparent solicitation defects must be protested before the closing date, and post-award deadlines can be very short, especially after a debriefing.
A pre-award protest can freeze award, and a timely post-award protest can suspend performance, so contracting officers must act immediately and document any override carefully.
Filing at the agency does not protect a protester’s GAO rights, so parties must track both agency and GAO deadlines at the same time.
Agencies should expect to document their reasoning clearly and deliver decisions in a way that proves receipt, because the written record matters for both internal review and any later external protest.
Official Regulatory Text
(a) Reference. Executive Order 12979, Agency Procurement Protests, establishes policy on agency procurement protests. (b) Prior to submission of an agency protest, all parties shall use their best efforts to resolve concerns raised by an interested party at the contracting officer level through open and frank discussions. (c) The agency should provide for inexpensive, informal, procedurally simple, and expeditious resolution of protests. Where appropriate, the use of alternative dispute resolution techniques, third party neutrals, and another agency’s personnel are acceptable protest resolution methods. (d) The following procedures are established to resolve agency protests effectively, to build confidence in the Government’s acquisition system, and to reduce protests outside of the agency: (1) Protests shall be concise and logically presented to facilitate review by the agency. Failure to substantially comply with any of the requirements of paragraph (d)(2) of this section may be grounds for dismissal of the protest. (2) Protests shall include the following information: (i) Name, address, and fax and telephone numbers of the protester. (ii) Solicitation or contract number. (iii) Detailed statement of the legal and factual grounds for the protest, to include a description of resulting prejudice to the protester. (iv) Copies of relevant documents. (v) Request for a ruling by the agency. (vi) Statement as to the form of relief requested. (vii) All information establishing that the protester is an interested party for the purpose of filing a protest. (viii) All information establishing the timeliness of the protest. (3) All protests filed directly with the agency will be addressed to the contracting officer or other official designated to receive protests. (4) In accordance with agency procedures, interested parties may request an independent review of their protest at a level above the contracting officer; solicitations should advise potential bidders and offerors that this review is available. Agency procedures and/or solicitations shall notify potential bidders and offerors whether this independent review is available as an alternative to consideration by the contracting officer of a protest or is available as an appeal of a contracting officer decision on a protest. Agencies shall designate the official(s) who are to conduct this independent review, but the official(s) need not be within the contracting officer’s supervisory chain. When practicable, officials designated to conduct the independent review should not have had previous personal involvement in the procurement. If there is an agency appellate review of the contracting officer’s decision on the protest, it will not extend GAO’s timeliness requirements. Therefore, any subsequent protest to the GAO must be filed within 10 days of knowledge of initial adverse agency action (4 CFR21.2(a)(3)). (e) Protests based on alleged apparent improprieties in a solicitation shall be filed before bid opening or the closing date for receipt of proposals. In all other cases, protests shall be filed no later than 10 days after the basis of protest is known or should have been known, whichever is earlier. The agency, for good cause shown, or where it determines that a protest raises issues significant to the agency’s acquisition system, may consider the merits of any protest which is not timely filed. (f) Action upon receipt of protest. (1) Upon receipt of a protest before award, a contract may not be awarded, pending agency resolution of the protest, unless contract award is justified, in writing, for urgent and compelling reasons or is determined, in writing, to be in the best interest of the Government. Such justification or determination shall be approved at a level above the contracting officer, or by another official pursuant to agency procedures. (2) If award is withheld pending agency resolution of the protest, the contracting officer will inform the offerors whose offers might become eligible for award of the contract. If appropriate, the offerors should be requested, before expiration of the time for acceptance of their offers, to extend the time for acceptance to avoid the need for resolicitation. In the event of failure to obtain such extension of offers, consideration should be given to proceeding with award pursuant to paragraph (f)(1) of this section. (3) Upon receipt of a protest within 10 days after contract award or within 5 days after a debriefing date offered to the protester under a timely debriefing request in accordance with 15.505 or 15.506 , whichever is later, the contracting officer shall immediately suspend performance, pending resolution of the protest within the agency, including any review by an independent higher level official, unless continued performance is justified, in writing, for urgent and compelling reasons or is determined, in writing, to be in the best interest of the Government. Such justification or determination shall be approved at a level above the contracting officer, or by another official pursuant to agency procedures. (4) Pursuing an agency protest does not extend the time for obtaining a stay at GAO. Agencies may include, as part of the agency protest process, a voluntary suspension period when agency protests are denied and the protester subsequently files at GAO. (g) Agencies shall make their best efforts to resolve agency protests within 35 days after the protest is filed. To the extent permitted by law and regulation, the parties may exchange relevant information. (h) Agency protest decisions shall be well-reasoned, and explain the agency position. The protest decision shall be provided to the protester using a method that provides evidence of receipt.