Scope of pre-award automatic stay - Protest

[Supra]

Pre-award, offeror files a GAO protest challenging solicitation.

The plain language of the applicalbe rules/regs provide that the agency can't award the contract.

It appears they can continue to "negotiate," however.

What can/cant the agency do while pre-award protest is pending?

I've seen a decision where the agency can negotiate with other offerors to extend their offers so that they don't have to re-do. Can the agency do more than that? Can it continue with its due diligence leading up to an award? Or, must it stop essentially all procurment activities (note the exception listed above), subject to agency justification to continue on (urgency/need/emerency/etc.)? Can the agency contact other potential offerors and try to generate interest in protested procurement?

Thanks in advance.

[Guest Vern Edwards]

I guess I don't understand the question. FAR 33.104((1) states:

When the agency has received notice from the GAO of a protest filed directly with the GAO, a contract may not be awarded unless authorized, in accordance with agency procedures, by the head of the contracting activity, on a nondelegable basis... .

The rule seems clear enough. You cannot award a contract. You can do anything short of that. You can conduct discussions, solicit final proposal revisions, evaluate proposal revisions, and select a winner. You can even get the selectee to sign a contract document as long as the CO does not sign. I know of no legal decision that says otherwise. Whether it would be wise to continue in that way is another matter and depends on the circumstances, but I know of no legal bar to doing any of that. You should check with your superiors and your legal office about agency or local policies and procedures.

[Supra]

Just wanted a sanity check, and you provided it. Thanks again.