Conditions: You are assigned as a Contingency Contracting Officer (CCO) and have access to current acquisition regulations, local procedures, and required automation and office supplies. You have been assigned the task of explaining pre and post award protest procedures that are unique to USACE contracting.
Standards: Explained steps in processing pre and post award protests that are compliant with USACE Acquisition Instruction (UAI) Part 33. Given notice of a protest, the Soldier is able to correctly identity if the protest is an agency or Government Accountability Office (GAO) protest; a pre or post award protest;
identify the approval authority required to proceed with award or work; correctly establish the protest period given the date of contract award; and compiled a complete and accurate findings of fact for the basis of the Contracting Officer (KO) Report
Performance Steps:
1. Determine type of protest. Agency or GAO; pre or post award.
2. Establish whether protest is timely.
3. Issue Notification of Protest. Upon receipt of a protest, immediately notify the KO, District Counsel, and Project Manager (PM). In addition, the Regional Principal Assistant Responsible for Contracting (PARC) and the Regional Contracting Chief (RCC) should be notified by the District Contracting
Chief/Center Contracting Chief (DCC/CCC) and provided a synopsis of the protest. Upon resolution, the DCC/CCC should provide notification of the protest decision to the PARC for purpose of providing lessons learned and best practices information. The Protest Notification should include the following information:
f. Pre-award: status of solicitation/award
g. Post-award: date of contract award or Notice to Proceed (NTP) h. Description/basis of protest
i. Time constraints
NOTE: For Post-award protests, a copy of the protest should be provided to the awardee. See FAR 33.104(a)(2)(ii) for guidance on procedures if a protective order is in place.
NOTE: The Office of the Chief Counsel shall be advised of any protest of national significance or precedential nature. The Chief Counsel may choose to intervene in any case, to include removing the
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case from the general delegation. The Division and Center Counsel may consult with the Office of the Chief Counsel in any protest as deemed necessary.
NOTE: If, after bid opening, an apparent low bidder protests the reasonableness of the Independent Government Estimate (IGE), the KO shall provide the details of the IGE to the protester upon receipt of complete details of the protester’s estimate. The details of the IGE and protester’s estimates are not to be disclosed to third parties.
4. Determine whether solicitation, award or contractor performance activities must be suspended.
NOTE: Agency Protest Before Award. Upon receipt of an agency protest before award, a contract may not be awarded, pending agency resolution of a 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 by the Head of the Contracting Activity (HCA) on a non-delegable basis. For USACE, the Chief of Engineers is the HCA.
NOTE: The findings for authorization of contract performance should be processed in accordance with the requirements provided at UAI 33.104(b)(1), Protests before award.
NOTE: Agency Protest After Award. Upon receipt of an agency protest within 10 days after contract award or within five days after a debriefing date offered to the protester under a timely debriefing request in accordance with FAR 15.505 or 15.506, whichever is later, the KO shall immediately suspend
performance pending resolution of the protest within the agency, 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 by the HCA on a non-delegable basis.
NOTE: GAO Protest. All requests to the Office of the Deputy Assistant Secretary of the Army
(Procurement) (DASA (P)) for approval to award a contract or issue a NTP, notwithstanding a protest, shall be forwarded through the appropriate PARC office to the Director, National Contracting Organization (NCO), for processing and transmittal to DASA (P). It should be noted that the override approval standard is very high. Generally such request shall be submitted to the USACE Director, NCO within three days of notice of the protest [see AFARS 5133.104(b)(1)(B)]. The request shall include a complete explanation for the need to award or proceed with performance of the contract, including costs and other impacts, and the KOs Report with the analysis and documentation set forth in FAR 33.104(a)(3). In addition, the request shall address the likelihood of the agency successfully defending the protest on the merits. The request shall be reviewed for legal sufficiency at the originating office and at each office required to concur with the request.
5. Determine the resolution authority for the protest.
NOTE: Where appropriate, KOs are encouraged to use Alternative Dispute Resolution (ADR) procedures to resolve Agency protests.
NOTE: The USACE agency protest process provides an independent review at a level above the KO. In response to each agency protest, the appropriate KO shall submit an agency protest report, with the analysis and documentation set forth in FAR 33.104(a)(3) and UAI 33.190-102.
NOTE: Agency Protests. The Chief Counsel is authorized to decide all agency protests with power of delegation. The Chief Counsel has delegated the authority to decide agency-level protests to the following Division or Center Counsels: Lakes and Rivers Division (LRD), Mississippi Valley Division (MVD), North Atlantic Division (NAD), Northwestern Division (NWD), Pacific Ocean Division (POD), South Atlantic Division (SAD), Southwestern Division (SWD), South Pacific Division (SPD), Transatlantic
Division (TAD), and the Huntsville Engineering and Support Center (HNC). Such authority is without the power of redelegation. The Chief Counsel has delegated authority to decide agency level protests in the Humphreys Engineer Center Support Activity (HECSA), and the Engineer Research Development Center
(ERDC) to the Assistant Chief Counsel for Procurement Law and Contract Disputes. Divisions, and Centers with delegated authority shall furnish copies of all final agency decisions to the Office of the Chief Counsel, within five days after the decision is signed.
NOTE: GAO Protests. The Chief Counsel has the authority to determine the final agency position for GAO protests with power of delegation. The Chief Counsel has delegated authority to determine the final agency position for GAO protests to the following Division or Center Counsels: LRD, NAD, NWD, POD (for Alaska District only), SAD, SPD, SWD, TAD, ERDC, and HNC. Such authority includes the power for Division Counsel to redelegate to the Districts. Delegated protests shall be processed in accordance with procedures established by the respective Division Counsels. Offices with delegated authority must furnish copies of all final agency positions (excluding exhibits) to the Office of the Chief Counsel, as soon as practicable after the position is signed. At the discretion of the Chief Counsel, draft copies may be requested for review prior to transmission to GAO. Final agency positions include the agency report and agency response to protester comments, as well as any dispositive motion submitted by the agency.
The Chief Counsel has retained authority to determine the final agency position for GAO bid protests in the MVD, HECSA and POD (for all Districts except Alaska). Counsel at such offices shall forward the KOs Report directly to the Office of the Chief Counsel within 15 days of the telephonic notification from GAO, for determination of the final agency position on the protest. A copy shall be simultaneously sent to the Division Counsel for review and comment. Each KOs Report submitted shall include the analysis and documentation set forth in UAI 33.190-100.
6. Coordinate with Office of Counsel (OC) to determine whether grounds for dismissal of GAO protest are present.
NOTE: Immediately after receipt of a complete copy of the protest, counsel assigned to the case should consider whether a request for summary dismissal is appropriate. If summary dismissal of the protest or certain grounds of the protest is warranted, a request must be submitted to the GAO within five days, with a copy provided to each interested party. The written request should clearly indicate the protest number, the grounds of the protest that should be dismissed, and the reasons for dismissal. Where appropriate, counsel who has delegated bid protest authority should contact the assigned GAO attorney telephonically to inform them of the agency’s intent to submit a request for summary dismissal. Subsequently, the request and supporting documents should be sent by facsimile and e-mail to the GAO attorney and each interested party.
7. Identify the basis or bases of protest.
8. Develop the Findings of Fact for the KO Report
9. Contact the protestor in an effort to have the protest withdrawn. Typically, the KO, or if the contractor has an attorney – Counsel, will be the one to contact the protestor, but you can assist by completing the fact finding and developing arguments/positions for the KO/OC to use when talking with the contractor or its representative.
10. Develop KO report. In addition to the documents described in FAR 33.103(d) and 33.104(a) (3), each KO Report on an agency or GAO protest shall include:
a. Findings of fact prepared with complete supporting documentation addressing all facts, favorable and unfavorable to the KOs position.
b. Analysis by legal counsel with citation to pertinent decisions of the Comptroller General and other relevant authority.
NOTE: The KOs Report shall not be released to any member of the public, including the protester and other interested parties, without the prior approval of the office having authority to decide an agency protest or to determine the final agency position on a GAO protest.
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NOTE: The KOs Report should be assembled in a secure binder fastened at the left side with a fastener that will permit the full page to be read. The index of all documents should be placed as the first page.
Each document should be separated by a divider with a tab attached and labeled. The KOs statement should be paginated. Sizable files should be divided into two or more volumes. The cover of the report should identify it as the protest file and include the file number. Drawings should be folded and placed into an envelope in the binder. The solicitation/contract should be enclosed as a separate exhibit if it is
voluminous in size. With GAO’s prior approval, the administrative report may be submitted on a compact disc or via e-mail. If submitting an administrative report electronically, the documents shall be submitted in .pdf format.
11. Make copies of the protest file for KO, OC, RCC, and Division Counsel. If a GAO protest, make additional copies for HQ and GAO.
Evaluation Preparation and Guidance: Setup: Brief Soldier on the protest process and provide a sample of a protest file for the Soldier to use to become familiar with the products. Evaluator will notify Soldier that activity has received a protest and provide a copy of the protest and its timing in relation to award. If a new protest is not available, use a previous protest to evaluate performance.
Performance Measures: GO NO-GO
1. Upon award of a contract, correctly established the protest period for
offerors, with and without debriefings _____ _____
2. Correctly determined the type of protest _____ ______
3. Provided proper notification to appropriate organizations _____ ______
4. Identified which procurement/performance activities need to be suspended _____ ______
5. Identified approval authority required to proceed with award/work _____ ______
in the face of a protest
6. Identified the basis of the protest _____ ______
7. Explained what should be included in the findings of fact for subject protest _____ ______
References: (See DVD for References)
Open the NCO Contracting website at https://kme.usace.army.mil/CoPs/Contracting/default.aspx.
Accessing this site first will allow the hyperlinks to open.
1. FAR / DFARS / AFARS / EFARS / UAI Part 33, Protests, Disputes, and Appeals
Task 2-16