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edwardscpfd

Agency Level / GAO Protest

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An Agency Level Protest was filled with our office on March 15, 2016.

Yesterday, April 13, 2016, (prior to the Agency decision) the Agency received notice from the Contractor that a GAO Protest had been filled.

My Question...  Should a protestor file with GAO while an Agency protest is pending, is the Agency then absolved from issuing a decision?

I will continue to look in Part 33 as well as 4 CFR Part 21, etc.; however, I have yet to find this scenario addressed.  My gut tells me that once a protest is filled with GAO, any pending Agency decision would now be irrelevant (for lack of a better word this early in the morning).

 

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54 minutes ago, edwardscpfd said:

An Agency Level Protest was filled with our office on March 15, 2016.

Yesterday, April 13, 2016, (prior to the Agency decision) the Agency received notice from the Contractor that a GAO Protest had been filled.

My Question...  Should a protestor file with GAO while an Agency protest is pending, is the Agency then absolved from issuing a decision?

That's a decision for the offeror. Nothing prohibits it. If the agency takes corrective action on its own, GAO may dismiss the protest as academic or moot if I recall correctly.

I'm sure you'll get some supported facts from the others. In the meantime, you can Google "GAO agency protest dismissed academic".

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Yes, unless your agency regulations say otherwise, and assuming the protest to GAO raises the same issues as the agency protest, you may dismiss the agency protest without a decision because of the GAO filing.  The GAO itself routinely dismisses bid protests whenever the matter involved is the subject of litigation before any court of competent jurisdiction.  See GAO Bid Protest Regulations, § 21.11.

Rather than splitting your energy and resources between two efforts (the agency protest and the protest to GAO), your agency might be best served by focusing its energy and resources on the protest to GAO.

However, if the agency was wrong, the agency could decide to take corrective action at any time.

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I did find this old WIFCON thread. I noticed the lack of references in most of the answers, plus it was a 2002 discussion. 

http://www.wifcon.com/arc/forum375.htm

Also - During a Google Search, I ran across the GSA's Agency Protest rules, which allowed the Agency to dismiss the Agency Protest after a GAO Protest is filed before there is a Decision on the Agency Protest. 

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See paragraph 21.2 ("Time for Filing" )of the GAO Protest Regulations at http://www.gao.gov/legal/bid-protest-regulations/about

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At any rate, GAO should be telephonically notifying your agency of the protest today, per paragraph 21.3 , Notice of Protest, [etc.] .   http://www.gao.gov/legal/bid-protest-regulations/about

Your lawyer should know the answer to your question and/or can check your agency protest regs.  There is also discussion under 21.3, if the agency would request dismissal of the GAO Protest. 

The GAO may consider a protest if protesting party files a protest in another forum within 10 days of actual or constructive knowledge of initial  adverse agency action (see 21.2).  

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Thanks all, I swear I tried Google before posting! :-)

Counsel requested that we look into this as they were unaware with exactly how we should proceed.   As of 0907, our Office of Counsel has yet to receive notice from GAO.  Possibly it was a tactic by the Contractor to rush our decision...

After reviewing the info that all of you provided, specifically Based on GAO Decision B-281082, I have advised my superiors that we should move forward with our decision.

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I cannot imagine how B-281082, Omni Corporation, is relevant to your procurement -- it discusses A-76 public private competitions, and there was no agency level protest before the GAO protest.

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