Subpart 833.1 - Protests

Parent topic: PART 833 - PROTESTS, DISPUTES, AND APPEALS

833.103-70 Protests to VA.

(a) Agency protests. Pursuant to FAR 33.103(d)(4), an interested party may protest to the

contracting officer or, as an alternative, may request an independent review at a level above the

contracting officer as provided in this section. An interested party may also appeal to VA a

contracting officer's decision on a protest.

(1) Protests to the contracting officer. Protests to the contracting officer shall be in writing and shall

be addressed where the offer/bid is to be submitted or as indicated in the solicitation.

(2) Independent review or appeal of a contracting officer decision - protest filed directly with the

agency.

(i) Protests requesting an independent review a level above the contracting officer, and appeals

within VA above the level of the contracting officer, shall be addressed to: Executive Director, Office

of Acquisition and Logistics, Risk Management and Compliance Service (RMCS), Department of

Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420.

(ii) The protest and pertinent documents shall be mailed to the address in paragraph (a)(2)(i) of this

section or sent electronically to: EDProtests@va.gov.

(3) An independent review of a protest filed pursuant to paragraph (a)(2) of this section will not be

considered if the interested party has a protest on the same or similar issues pending with the

contracting officer.

(b) Agency actions on specific types of protests. The following types of protests may be dismissed by

VA without consideration of the merits or may be forwarded to another agency for appropriate

action:

(1) Contract administration. Disputes between a contractor and VA are resolved under the disputes

clause see the Dispute statute, 41 U.S.C. chapter 71.

(2) Small business size standards and standard industrial classification. Challenges of established

size standards, ownership and control or the size status of particular firm, and challenges of the

selected standard industrial classification are for review solely by the Small Business Administration

(SBA) (see 15 U.S.C. 637(b)(6); 13 CFR 121.1002). Pursuant to Public Law 114-328, SBA will also

hear cases related to size, status, and ownership and control challenges under the VA Veterans First

Contracting Program (see 38 U.S.C. 8127(f)(8)).

(3) Small business certificate of competency program. A protest made under section 8(b)(7) of the

Small Business Act, or in regard to any issuance of a certificate of competency or refusal to issue a

certificate under that section, is not reviewed in accordance with bid protest procedures unless

there is a showing of possible fraud or bad faith on the part of Government officials.

(4) Protests under section 8(a) of the Small Business Act. The decision to place or not to place a

procurement under the 8(a) program is not subject to review unless there is a showing of possible
fraud or bad faith on the part of Government officials or that regulations may have been violated

(see 15 U.S.C. 637(a)).

(5) Affirmative determination of responsibility by the contracting officer. An affirmative

determination of responsibility will not be reviewed unless there is a showing that such

determination was made fraudulently or in bad faith or that definitive responsibility criteria in the

solicitation were not met.

(6) Contracts for materials, supplies, articles, and equipment exceeding $15,000. Challenges

concerning the legal status of a firm as a regular dealer or manufacturer within the meaning of 41

U.S.C. chapter 65 are determined solely by the procuring agency, the SBA (if a small business is

involved), and the Secretary of Labor (see FAR subpart 22.6).

(7) Subcontractor protests. The contracting agency will not consider subcontractor protests except

where VA determines it is in the interest of the Government.

(8) Judicial proceedings. The contracting agency will not consider protests where the matter

involved is the subject of litigation before a court of competent jurisdiction.

(c) Alternative dispute resolution. Bidders/offerors and VA contracting officers are encouraged to

use alternative dispute resolution (ADR) procedures to resolve protests at any stage in the protest

process. If ADR is used, VA will not furnish any documentation in an ADR proceeding beyond what is

allowed by the FAR.

(d) Appeal of contracting officer's protest decision - agency appellate review. An interested party

may request an independent review of a contracting officer's protest decision by filing an appeal in

accordance with paragraph (a)(2) of this section.

(1) To be considered timely, the appeal must be received by the cognizant official in paragraph (a)(2)

of this section within 10 calendar days of the date the interested party knew, or should have known,

whichever is earlier, of the basis for the appeal.

(2) Appeals do not extend the Government Accountability Office's (GAO) timeliness requirements for

protests to GAO. By filing an appeal as provided in this paragraph (d), an interested party may waive

its rights to further protest to the Comptroller General at a later date.

(3) Agency responses to appeals submitted to the agency shall be reviewed and concurred in by the

Office of the General Counsel (OGC).

833.106-70 Solicitation provisions.

(a) The contracting officer shall insert the provision at 852.233-70, Protest Content/Alternative

Dispute Resolution, in solicitations expected to exceed the simplified acquisition threshold, including

those for commercial items.

(b) The contracting officer shall insert the provision at 852.233-71, Alternate Protest Procedure, in

solicitations expected to exceed the simplified acquisition threshold, including those for commercial

items.