Many federal contractors have heard about the revamping of the Federal Acquisition Regulation. Variously called FAR 2.0, the Revolutionary FAR Overhaul, and most commonly simply RFO, this project has been undertaken by the Office of Federal Procurement Policy (OFPP) and the Federal Acquisition Regulatory Council (FAR Council). Initiated by Executive Order in April 2025, the new RFO process has been going quickly, with lots of proposed revisions.
Our earlier posts regarding various aspects of the RFO can be found here: Executive Order, Overview of FAR 2.0, FAR Part 6, FAR Part 19, FAR Part 12, FAR Part 15.
In this post, we’ll review one proposed revision that seems to make some slight changes to the language: Part 33 Protests, Disputes, and Appeals. In particular, this part incentivizes the use of agency level protests over other types of protests.
Purpose
Per the Practitioner Album, FAR Part 33 has been updated to “to reduce protests and resolve protests at the lowest level possible.” There is a new definition of the purpose of the protest system in section 33.100. One of the goals is to “[d]eter and discourage abuse of the bid protest process by requiring clear and substantiated allegations of procurement impropriety.” Other goals include correcting procurement errors quickly, protecting independent review of procurement concerns, and promoting “integrity, competition, accountability, and public confidence in the federal acquisition system.”
The additional policies surrounding this Part encourage different methods to reduce protests. For instance:
- “Complex evaluation schemes with multiple factors, subfactors, and unclear evaluation criteria carry higher protest risk. When determining your evaluation method, consider how you can be fair and reasonable while maintaining appropriate flexibility to select the best vendor to support your mission requirement.”
- “When debriefings are requested, consider sharing redacted decision and evaluation documents—already discoverable in protests—to improve transparency.
- “For required “brief explanations” (e.g., FSS orders or FAR 12 RFQs), include the explanation in the award notice to help manage protest timelines.”
Agency Protests
The agency protest process has been revamped to encourage it to be used more often. Based on our experience, contractors are hesitant to use the agency protest process because it is basically asking the same agency procurement folks to review the procurement decision they just made–expecting a different result is unlikely.
In particular, the following sections have been updated:
- FAR 33.104-4(a)(4)(ii): “Contracting officers are required to report protests to the head of contracting activity (HCAs) as soon as practicable after filing.”
- FAR 33.104-4(a)(5)(ii) has been added so that “Protesters electing independent review at a level above the CO must be provided a redacted copy of the source selection decision, and be provided an opportunity to submit a supplemental statement to the independent review official.” This is a new feature of the agency protest process. Under current FAR language, there is no opportunity to respond to the agency after the initial protest. The agency just files its decision and that is generally the end of the agency protest process. The current version of the regulation says that “the parties may exchange relevant information,” but this is rare in my experience. FAR 33.103.
Other procedural aspects of the agency protest process, such as timing, are similar to the prior iteration.
Other Language Retained
Much of the other provisions of FAR part 33 remain the same, with some wording changes. For instance, the description of “Protests to GAO” now points to the GAO’s regulations at 4 CFR Part 21, instead of repeating this language.
The claim dispute process has been streamlined into one section in FAR 33.205, with the goal to provide “more intuitive, step-by-step guide to the post-award claims process.” All clauses for this Part are retained, including 52.233-1 Disputes, revised to now describe what a defective certification means; 52.233-2 Service of Protest, revised to require protests to be shared with the contracting office within one day of filing with the GAO; 52.233-3 Protest After Award, revised to describe steps for protests post award, such as stop work orders; 52.233-4 Applicable Law for Breach of Contract Claim, remains the same that U.S. law will be applied to address breach.
Other changes include wording changes to remove duplicative language or to make things more readable. For instance, this language has been deleted: “No person may file a protest at GAO for a procurement integrity violation unless that person reported to the contracting officer the information constituting evidence of the violation within 14 days after the person first discovered the possible violation (41 U.S.C. 2106).” FAR 33.102.
Takeaways
With the changes, the agency level protest process is more robust and allows for supplementation of the arguments. It will be interesting to see if more contractors take advantage of this process, and how agencies deal with a potential increase in protests at that level.
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