You can't protest if you don't ask
If you think about it, bid protests are kind of amazing. Like, if I personally decided to buy a Toyota, Ford couldn't sue me saying that I made a bad choice. Or, like, if the NFL picks FedEx over UPS to ship the Lombardi trophy[1], UPS can grumble about it all it wants, but UPS can't sue the NFL about that choice.[2]
But when it comes to government contracts, we let unsatisfied bidders sue the government if they're unsatisfied! And, incredibly, we don't just have one place for unsatisfied bidders to sue; we have three avenues for protest: the Government Accountability Office, the Court of Federal Claims, and "agency-level protests".
We write here a lot about bid protests at the GAO and the COFC. But we don't often write about agency-level protests. That's because agency-level protests are a "black box" and basically no one knows how they actually work in practice.[3]
How often do agency-level protests happen? ¯\_(ツ)_/¯ How often do protestors win? ¯\_(ツ)_/¯ Are there limits to what can be protested at the agency-level? ¯\_(ツ)_/¯
Agency-level protests involve a lot of shruggies. And because they're a mysterious black box, it's hard for me to write about them!
But last week, we got a peek into the black box of agency-level protests, courtesy of a subsequent GAO protest called Byrd Enterprises Unlimited, Inc. And, well, what we saw was kind of silly?
On January 3, 2023, the Air Force put out a solicitation for ground-maintenance services, with a closing date of January 24th. Important for our purposes, the Air Force allowed bidders to submit questions up to January 20th. On February 1st, the Air Force made an award to AllServ, Inc.
According to Byrd, the problem was that the Air Force made the award without resolving Byrd's agency-level protest! And that's a no-no under the FAR. If there's a timely pre-award protest, "a contract may not be awarded, pending agency resolution of the protest, unless contract award is justified."[4] So what gives?
To explain, allow me to dramatize how I might imagine the conversation going between the Air Force's lawyer and the Contracting Officer:
AGENCY LAWYER: I have some bad news. We received a protest at the GAO today indicating that you failed to resolve a pre-award, agency-level protest before making an award. As you know, the FAR requires resolution of pre-award agency-level protests before making an award.
CONTRACTING OFFICER: Uh... What are you talking about? We didn't have a pre-award protest?
AGENCY LAWYER: Did you receive an email on January 17th at 10:23 am from Byrd Enterprises Unlimited?
CONTRACTING OFFICER: Let me check... Um, yes? Why?
AGENCY LAWYER: That was the protest. You had to ...
CONTRACTING OFFICER: HAHAHAHA! But that isn't even a protest! It was just questions!!!
And, indeed, the GAO included the entirety of the email in question in the decision and it's hard to see how Byrd thought it was protesting here:
In this email—which the protester claims is an agency-level protest—Byrd states that some tasks listed in the performance work statement (PWS) are not included on the pricing sheet. The entirety of Byrd’s 10:23 a.m. email reads:
> "Appendix A and Att 1 Bid Schedule shows CLIN 002 as (PWS 1.1 thru 1.1.4), however this means the bid sheet is missing 1.1.5/.1 "TRIM" and 1.1.6 'WEED CONTROL' from the PWS
> I am running through the rest and will send more questions but wanted to bring this to your attention sooner than later so that is doesn't cause issues after the fact if those were meant to be included. Thank you sirs
As you can probably guess, the GAO heartily agreed with the Contracting Officer, noting that the email in question failed to show "a specific expression of dissatisfaction with the agency’s actions and a request for relief." As GAO put it:
Moreover, even if we were to assume, for the sake of argument, that the protester’s 10:23 a.m. email establishes some form of dissatisfaction with the agency’s failure to include certain items on the pricing sheet, Byrd does not specifically request any relief from the agency. At most, this email--sent between two other emails directing questions to the agency--reveals the protester’s hope or expectation that the agency would clarify the alleged solicitation discrepancy in the solicitation.
Pointing out that a solicitation on a ~$5M contract is missing a few lines is not gonna cut it. That's definitely not an agency-level protest. That's, like, Thursday. Sorry, Byrd. Them's the breaks.
In the end, Byrd loses, and it's an easy dunk for the agency and GAO on the protestor.
But it kinda makes you wonder... Wouldn't it have just been easier for everyone if there were more transparency and clearer procedures for folks to follow at the agency-level? Wouldn't that be better than fighting over what even counts as an agency-level protest?
Just sayin'.[5]
[1] Yes, this is a real thing.
[2] I mean, maybe they could if they had some independent claim, but you get my point.
[3] See Christopher Yukins & David Drabkin, DOD Bid Protests (Sept. 2022); Christopher Yukins, Stepping Stones to Reform (May 2020).
[4] FAR 33.103(f)(1).
[5] Ok, fine. Dear Air Force, if you are reading this, please adopt the recommendations from the Administrative Conference of the United States, Adoption of Recommendations, 86 Fed. Reg. 6612, 6619-23 (Jan. 22, 2021). I'd like to write about agency-level protests, but the lack of clear procedures and transparency means that I don't have much good material to work with. Please adopt the recommendations. Now, I'm not just sayin', I'm askin'.