Will the new federal ‘Buying Guides’ be protestable?

Editor's Note: This commentary by attorney Stephen Bacon first appeared on his LinkedIn page.

According to the FAR Overhaul page, “helpful non-regulatory content will be moved to new Buying Guides, designed to support smarter and faster acquisitions.” OMB Memo M-25-25 explains how the Buying Guides will be developed.

But a critical unanswered question is whether a violation of these Buying Guides may be protested.

The Government Accountability Office and U.S. Court of Federal Claims have consistently ruled that violations of internal agency policy or guidance, rather than procurement statute or regulation, do not establish valid bases for protest.

The relevant legal test focuses on whether the provisions create rights for offerors or merely protection for the government.

A 2023 GAO decision illustrates the general rule. GAO ruled that violations of the Patent and Trademark Office Guidelines (PTAG) weren't protestable despite being published in the Federal Register. GAO noted that the PTAG explicitly described itself as "internal operating procedures" and stated it wasn't binding on PTO or the public.

The name “Buying Guides” and OMB Memo M-25-25's description of them as identifying “practical and manageable pathways to acquisition solutions” suggest they'll probably be characterized as non-protestable internal procedures.

When the Buying Guides are published, I suspect they’ll include PTAG-like disclaimers. If included, you shouldn’t count on being able to protest a Buying Guide violation.

An exception may be situations where provisions of the Buying Guide are expressly incorporated into the RFP, making them mandatory for the agency to follow.

As the Buying Guides roll out, it will be important to identify any provisions that may create offeror rights and monitor how they’re referenced in solicitations.