B1 - NG Agency Protest Program.pdf

National Guard Protest Procedures

I. Introduction.

In contrast to private sector, the Federal system provides offerors opportunities to air grievances or challenge the contracting process results by virtue of protesting. Protests act as a checks and balance to ensure that government procurements are determined to be fair & reasonable and held to the highest standards of integrity. Protests should be informative and instructional for both the contracting officials and offerors. The most effective protests are those that are legally sufficient and procedurally sound. Even if the protest outcome does not change the award decision, the outcome may be positive in that the process will likely be improved for future actions. While there are several forums an unsuccessful offeror or interested party can use to protest an action [Agency, Government Accountability Office (GAO), or U.S. Court of Federal Claims (COFC)], agency level protests are the most efficient and effective method as they avoid costly litigation, and save time and resources for both the government and unsuccessful offeror.

The purpose of this document is to serve as a guide for contracting activity decision-making, based upon the National Guard’s (NG) current protest experience. If questions arise during the course of a protest, defense preparation which are not answered here, contracting professionals should contact the National Guard Bureau Staff Judge Advocate, Procurement Office for legal advice and/or assignment of a procurement attorney, or the Head of the Contracting Activity’s (HCA) designated NG Agency Protest Decision Authority (PDA).

II. General.

This document sets forth the National Guard’s agency level protest procedures.

A protest to a NG Contracting Officer (whether Army National Guard (ARNG) or Air National Guard (ANG) is considered a “protest to the agency,” within the meaning of FAR 33.103. The NG Protest Program is intended to encourage interested parties to seek resolution of their concerns within the organization as an Alternate Dispute Resolution forum, rather than filing a protest with the GAO or COFC. See AFARS 5133. The procedures apply only to NG agency level protests.

A NG agency level protest may be filed with either:

• The Contracting Officer designated in the solicitation, or

• NG’s Agency PDA at the address designated in the solicitation and this procedural document.

If the protest is silent on this matter, the Contracting Officer will decide the protest. Protests of actions addressed to United States Property and Fiscal Office (USPFO) Officials and not specifically addressed to the Contracting Officer, will be decided by the Contracting Officer unless that official has been issued a written delegation of authority by the HCA.

If the protester requests that its agency protest be independently reviewed at a level above the Contracting Officer, the PDA will resolve the protest in accordance with AFARS 5133.103(d)(4)(iii) and the procedures outlined in this document.

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III. Definitions.

“Agency Protest Decision Authority (PDA)” means the Official delegated protest decision authority by the Head of the Contracting Activity (HCA) when a protester requests an agency level review by other than the contracting officer

“Deciding official” means the person chosen by the protester to decide the agency protest; it may be either the Contracting Officer or the Agency Protest Decision Authority for NG (i.e. PDA)

“Interested party” means an actual or prospective offeror whose direct economic interest would be affected by the award of a contract or by the failure to receive a contract award. See

FAR 33.101

Note: Federal Government employees, unions or installations are not considered interested parties for the purposes of filing an agency level protest. Private-sector offerors on acquisitions subject to OMB Circular No. A-76 are also not considered interested parties for purposes of filing an agency level protest.

IV. NG level protest procedures.

NG Protest Decision Authority (PDA): The Head of the Contracting Activity (HCA) delegated the Ombudsman and Integration Division Chief as the designated Agency’s PDA, per AFARS

5133.103 and Appendix GG, without power of re-delegation.

Time for Filing an Agency Protest: A NG protest shall be filed in accordance with the time frames set forth in FAR 33.103(e). NG office hours are from 7:30 a.m. to 4:30 p.m. Unless otherwise stated in the Invitation for Bid (IFB)/Request for Proposal (RFP)/Request for Quote (RFQ), the time for filing any documents expires at 4:30 p.m., Eastern Time (ET) on the last day on which such filing may be made. See FAR 33.101.

The Agency may consider the merits of an untimely protest for good cause shown, or where it determines the protest raises significant issues. See FAR 33.103(e). The protest procedures identified in FAR Part 33 set precise time limits for filing to enable the Government to decide an issue while corrective action is possible. A protester that files an untimely agency protest before filing at GAO will usually be precluded from pursuing a subsequent GAO protest action.

Election of Forum: After an interested party protests a NG procurement to the Agency, the protester agrees not to file a protest with GAO or other external forum while the agency protest is pending. If the protestor files with GAO or COFC, the agency level protest will be summarily dismissed.

Required Information: Protests must be signed by an authorized representative of the protester. NG level protests must contain the protestor’s name, address, phone number, fax, solicitation or contract number, identity of the contracting activity and the contracting officer’s name, detailed statement of all legal and factual grounds for protest, copies of all relevant documents, and request for a ruling and relief.

Where to file / Service of Protest:

1) Protests to the Contracting Officer shall be filed at:

The address in the solicitation, See FAR Clause 52.233-2 for the name/address of the

Contracting Officer.

2) Protests to NG Protest Decision Authority shall be filed at:

National Guard Bureau Office of the Director of Acquisitions

ATTN: NGB-AQ-O

111 S. George Mason Dr.

Arlington, VA 22204

Email: ng.ncr.ngb-arng.mbx.ngb-task-order-ombudsman@mail.mil

V. Processing NG Level Protests.

A. Effect of Protest on award and performance:

• Protests based on alleged improprieties in the solicitation shall be filed prior to bid opening or the closing date for receipt of proposals. FAR 33.103(e). Upon receipt of a protest before award, a contract may not be awarded pending agency resolution of the protest, unless the HCA (non-delegable) approves, in writing, the award is justified for urgent and compelling reasons or is determined to be in the best interest of the Government to move forward in the face of the protest.

• Upon receipt of a protest within 10 days after contract award or within 5 days after a debriefing date offered to the protester under a timely debriefing request in accordance with FAR 15.505 or 15.506, whichever is later, the contracting officer shall immediately suspend performance, pending resolution of the protest within the agency, including any review by the PDA when applicable, unless approved, in writing, by the HCA (non-delegable).

• If merited, the Contracting Officer, in coordination with the technical experts within the requiring activity, at the office where the agency protest occurred, is responsible for submitting a written determination or justification to the HCA for approval, requesting continued performance for urgent and compelling reasons.

B. Action Upon Receipt of Protest:

• In response to an agency protest, the appropriate Contracting Officer shall notify the legal office and submit an agency protest report, with the analysis and documentation set forth in FAR 33.104(a)(3)(ii). The Contracting Officer must ensure that the PDA and NGB-JA legal office receive a copy of the materials served on the Contracting Officer within one (1) business day after the filing date.

• The Contracting Officer will prepare a Contracting Officer’s Statement of Relevant Facts within 10 calendar days of receipt of the protest. Following a Memorandum for Record (MFR) format, the document shall address assertions made by the protester and document must clearly articulate in detail all facts relative to the

October 2021 mailto:ng.ncr.ngb-arng.mbx.ngb-task-order-ombudsman@mail.mil https://www.acquisition.gov/content/part-15-contracting-negotiation#i1105749 https://www.acquisition.gov/content/part-15-contracting-negotiation#i1105784

Contracting Officer’s position. The document will provide the solicitation number, date issued, date closed, number of proposals/offers received, and date awarded (if awarded) as well as the contract number associated with the award. The document shall also identify acquisition regulations supporting the action taken or refer to the solicitation terms and conditions, source selection criteria, evaluation criteria that the Contracting Officer ensured was followed to support actions taken were clearly in compliance with the solicitation requirement and/or acquisition regulations and/or its supplements.

• The PDA shall issue the decision within 35 calendar days after receiving an agency protest. However, if a decision will not be issued within 35 days, the PDA shall notify the protester, within that period, of the date when a decision will be issued.

• The PDA may conduct a scheduling conference with the protester and assigned legal counsel. At the discretion of the PDA, he/she may ask the parties to participate in an oral presentation and/or to submit other written material related to the protest issues. In the event the PDA deems it necessary to have an oral presentation following submission of the Agency’s written response, it should be limited to resolving remaining issues of material fact necessary for resolution of the protest, as identified in advance by the PDA.

• The decision of the PDA must be in writing, dated, and include the following information: (1) Whether the protest was denied, sustained, or dismissed; and (2) The rationale for the decision.

• The written decision issued by the NG shall be binding on the NG and its contracting activities. If the PDA sustains a protest, the Contracting Officer must, within fifteen (15) days after receiving the protest decision, fully implement the recommended relief.

• In the event corrective actions must occur due to the PDA’s decision, the Contracting Officer shall provide the PDA an update to the status every two weeks via email until all corrective actions are complete.

• If a re-evaluation of proposals must occur due to the PDA decision, the contract file in question, regardless of dollar value, must be reviewed by the Compliance Division (for all non AQ-C & AQ-R actions), prior to re-award or lifting of the stop-work order.

C. NG PDA remedies: The following include one or a combination of remedies the PDA may grant:

• Terminate the contract

• Re-compete the requirement

• Issue a new solicitation

• Refrain from exercising options under the contract

• Award a contract consistent with statue and regulation

• Pay appropriate costs per FAR 33.102(b)(2)

• Other remedies as the NG PDA determines necessary to correct a defect

VI. Protest to the Contracting Officer.

A. General:

Contracting Officers must consider all protests, whether submitted before or after award and whether filed directly with the Agency or GAO. Further, the protester should be notified in writing of the Contracting Officer's final decision on an agency protest. Thus, a Contracting Officer should take action with regard to every protest received and must treat every protest seriously. A protest cannot simply be ignored. Specifically, FAR 33.102(a) requires the Contracting Officer to seek legal advice for every protest received. When a protest is filed with an agency prior to contract award, award may not be made unless the HCA determines the supplies or services are urgently needed, or performance will be in the best interest of the Government.

See FAR 33.103(f). Other offerors should be notified of the protest and asked to extend their bids on a no-cost basis if there is any possibility offers might expire before the protest is resolved.

See FAR 33.103(f)(2).

The United States Army Legal Services Agency, Contract and Fiscal Law Division (KFLD), which represents NG in GAO protests filed after the protester unsuccessfully sought relief from Contracting Officers, believes that some of these subsequent protests could have been avoided by more extensive legal involvement when the protest was still at the agency level.

B. Timelines / Procedures / Effect of Protest upon Award: See Sections IV and V(A) of these procedures.

C. Action upon receipt of a protest to the Contracting Officer:

• Upon receipt of an agency protest to the Contracting Officer, the Contracting Officer will prepare a Contracting Officer’s Statement of Relevant Facts within 10 calendar days of receipt of the protest. Following a Memorandum for Record (MFR) format, the document shall address assertions made by the protester and must clearly articulate in detail all facts relative to the Contracting Officer’s position. The document will provide the solicitation number, date issued, date closed, number of proposals/offers received, and date awarded (if awarded) as well as the contract number associated with the award. Identify acquisition regulations supporting the action taken or refer to the solicitation terms and conditions, source selection criteria, evaluation criteria that the Contracting Officer ensured was followed to support actions taken were clearly in compliance with the solicitation requirement and/or acquisition regulations and/or its supplements.

• Provide the Contracting Officer’s Statement of Relevant Facts along with the protest to the Legal Office for review and comment/advice in accordance with AFARS 5133.103(d)(3). The Contracting Officer's written decision should reflect well-researched and reasoned legal advice.

• The decision should clearly state that the protest is sustained, denied, or dismissed. Letters should not summarily deny or dismiss protests without providing sufficient factual discussion and legal citation, as applicable. The decision's rationale should contain the same degree of detail as though the Contracting Officer were attempting to persuade GAO as to the correctness of the Contracting Officer’s decision. See FAR 33.103(h).

• When the protest alleges concerns about the judgment of the Contracting Officer, the protest shall be forwarded to the PDA for review and decision. The PDA will coordinate with NGB-JA and the NGB-HCA prior to finalizing the decision. This will assure the interested party that the protest received impartial consideration.

• Contracting Officers will render protest decisions within 35 calendar days of filing.

See FAR 33.103(g).

• If a re-evaluation of proposals must occur due to the KO or PDA’s decision, the contract file in question, regardless of dollar value, must be reviewed by the Compliance Division (for all non AQ-C & AQ-R actions), prior to re-award or lifting of the stop-work order.

• The Contracting Officer's decision must be provided to the protester using a method that provides evidence of receipt. See FAR 33.103(h).

• If the protester decides to file the same protest with GAO, the protester must generally do so within ten (10) days after the protester was notified of the adverse agency action. If the protester misses this deadline, its subsequent protest to GAO may be dismissed as untimely. Therefore, it is important that the Government be able to establish when the protester knew of the adverse action. A return receipt email or telephone notification, documented by a contemporaneous memorandum stating the name of the protester’s representative with whom the Contracting Officer or Contract Specialist spoke, the date, time and substance of the conversation to sufficiently establish the date of the protester's knowledge.

D. NG KO remedies: The following include one or a combination of remedies the KO may grant:

• Terminate the contract

• Re-compete the requirement

• Issue a new solicitation

• Refrain from exercising options under the contract

• Award a contract consistent with statue and regulation

• Pay appropriate costs per FAR 33.102(b)(2)

VII. Documentation and Tracking of Protests.

All NG (Air and Army National Guard) contracting activities will use the Protest Module in VCE-PCF to record any protest received within 48 hours of being received. This includes protests received at any level (e.g. Contracting Officer-level, NG Agency-level, GAO, etc.). All final decisions of a protest will be filed accordingly within PCF.

The annual Agency Bid Protest Report will be prepared by the PDA for the HCA and submitted to DASA(P) IAW AFARS 5133.103-90.

VIII. Solicitation provision. Include the below provision in all solicitations:

NG Agency Protest Program is intended to encourage interested parties to seek resolution of their concerns with the National Guard (NG) as an Alternative Dispute Resolution forum, rather than filing a protest with the Government Accountability Office (GAO) or other external forum.

Contract award or performance is suspended during the protest to the same extent, and within the same time periods as if filed at the GAO. The NG protest decision goal is to resolve protests within 35 calendar days from filing. An agency protest may be filed with either the Contracting Officer or the NG Agency’s Protest Decision Authority, but not both, in accordance with NG protest procedures.

To be timely, the protests must be filed with the periods specified in FAR 33.103. To file a protest under the NG Agency Protest Program, the protest must request resolution under that program and be sent to the address below:

National Guard Bureau Office of the Director of Acquisitions/ Head of Contracting Activity

ATTN: NGB-AQ-O

111 S. George Mason Dr.

Arlington, VA 22204

Email: ng.ncr.ngb-arng.mbx.ngb-task-order-ombudsman@mail.mil

All other agency-level protests should be sent to the Contracting Officer for resolution at the address in the solicitation. See FAR clause 52.233-2.

NG Public-facing, general Protest information is found at:

https://www.nationalguard.mil/Leadership/Joint-Staff/Special-Staff/Director-of-Acquisitions/

Directorate of Acquisitions information for the contracting enterprise is found at https://gko.portal.ng.mil/ngb/STAFF/D01/D01/OI/Protests%20and%20Complaints/Forms/AllItems.

aspx mailto:ng.ncr.ngb-arng.mbx.ngb-task-order-ombudsman@mail.mil https://www.nationalguard.mil/Leadership/Joint-Staff/Special-Staff/Director-of-Acquisitions/ https://gko.portal.ng.mil/ngb/STAFF/D01/D01/OI/Protests%20and%20Complaints/Forms/AllItems.aspx https://gko.portal.ng.mil/ngb/STAFF/D01/D01/OI/Protests%20and%20Complaints/Forms/AllItems.aspx