Distinguish between available remedies for a protest and a claim.

By Charlie Dan on Tuesday, April 10, 2001 - 03:39 pm:

Here's a very quick answer. There are entire training classes and texts on each topic (protests and claims). This is how the FAR defines the two terms, from FAR Part 33:

FAR 33.101: " 'Protest,' as used in this subpart, means a written objection by an interested party to any of the following:

"(a) A solicitation or other request by an agency for offers for a contract for the procurement of property or services.

"(b) The cancellation of the solicitation or other request.

"(c) An award or proposed award of the contract.

"(d) A termination or cancellation of an award of the contract, if the written objection contains an allegation that the termination or cancellation is based in whole or in part on improprieties concerning the award of the contract."

FAR 33.201: " 'Claim,' as used in this part, means a written demand or written assertion by one of the contracting parties seeking, as a matter of right, the payment of money in a sum certain, the adjustment or interpretation of contract terms, or other relief arising under or relating to the contract. A claim arising under a contract, unlike a claim relating to that contract, is a claim that can be resolved under a contract clause that provides for the relief sought by the claimant. ... {There is further clarification in this definition}"

For the most part, protests are filed against proposed or actual awards -- they are usually objections to a selection. Claims, on the other hand, are objections to the way an existing contract is administered. Looking at it another way, a protest is usually filed by a disappointed bidder (a firm not selected), whereas a claim is filed by a firm already under contract.

Protests may be filed with the contracting officer, the agency, or the Comptroller General. If a protest is upheld, the remedies may include a directed award to the protestor, a requirement for the agency to reopen the selection process (possibly with a requirement to conduct negotiations or discussions with the protestor), or costs - as set forth in FAR 33.104(h):

"If the GAO determines that a solicitation for a contract, a proposed award, or an award of a contract does not comply with a statute or regulation, the GAO may recommend that the agency pay to an appropriate protester the cost, exclusive of profit, of filing and pursuing the protest, including reasonable attorney, consultant, and expert witness fees, and bid and proposal preparation costs."

Protests may also be filed with the Court of Federal Claims. They might be able to assess different remedies. Luckily, I have never had to respond to a protest to the Court of Federal Claims.

The WIFCON page on Protests has more information on this topic.

Claims are usually filed pursuant to the Disputes clause of the contract, in accordance with the Contract Disputes Act. Although the FAR recognizes there can be claims for adjustments to contract terms, a claim is usually for money and in most claims that is the remedy requested. Claims are processed in accordance with FAR Subpart 33.2, and usually are decided by the Contracting Officer or the responsible agency board of contract appeals.

Sometimes claims are filed with the courts (US Court of Federal Claims or the US Court of Appeals for the Federal Circuit). More information is available on claims at the WIFCON page on Courts & BCAs. The courts are more of an appeal route, usually following a decision at the board of contract appeals.

Like I said, there's a lot more information available on either topic. In trying for a short off-the-cuff answer, I'm sure I've left out something important.