As part of the Trump Administration’s Revolutionary FAR Overhaul^[1] (“RFO”), the FAR Council has released a model deviation for FAR Part 33 – Protests, Disputes, and Appeals, which includes changes that seem intended to make agency-level protests more appealing to disappointed offerors.  It remains to be seen whether these proposed changes will have the desired effect, particularly in instances where a protester wishes to subsequently re-file at GAO.

Changes to Agency-Level Protest Procedures

Under the codified, non-overhauled version of FAR Part 33, interested parties can file an agency-level protest with the contracting officer, or request an “independent review” of their protest by an agency official at a level above the contracting officer.  FAR 33.101(d).  Depending on the agency, the independent official will either (1) decide the protest in the first instance; or (2) hear an appeal of the contracting officer’s protest decision.  FAR 33.101(d)(4).

RFO Part 33 retains this basic structure for agency-level protests, but seeks to impose two new requirements on agencies when protesters request an “independent review.”  Agencies would have to give the protester:

• A redacted copy of the source selection decision (“SSD”).  RFO FAR 33.104-4(a)(5)(ii)(B); and

• An opportunity to submit a supplemental protest based on the redacted SSD.  RFO FAR 33.104-4(a)(5)(ii)(C).

Practical Implications

Though the foregoing proposed changes seem designed to make agency-level protests more appealing to disappointed offerors, it is unclear how much benefit they will end up conveying. 

As an initial matter, to obtain the redacted SSD, disappointed offerors would have to incur the expense of an agency-level protest (and, potentially, an appeal).  And because defense agencies are already required to provide a redacted SSD as part of the debriefing process for contract awards over a certain dollar threshold, this new requirement would benefit only disappointed offerors not already covered by the DOD procedure.

Additionally, seeking independent review from the agency may foreclose the possibility of obtaining meaningful relief from GAO if the protester wishes to later re-file at GAO because (1) a post-award, agency-level protest under RFO Part 33 would not extend the time for obtaining an automatic stay at GAO; and (2) GAO’s 10-day filing deadline is not tolled when the independent review is an appeal from the contracting officer’s protest decision.

Given these considerations, GAO and COFC may continue to be more appealing forums for post-award protests. 

RFO Part 33 does not take effect unless adopted through agency-specific class deviations or until the RFO formally goes through notice-and-comment rulemaking.  To date, 18 agencies have adopted some or all of the model deviation, though in some instances the class deviation does not become effective until early November 2025.

[1]           General background on the RFO is available in our previous Inside Government Contracts coverage here and here.  RFO materials are available at https://www.acquisition.gov/far-overhaul.