[Federal Register Volume 60, Number 20 (Tuesday, January 31, 1995)]
[Proposed Rules]
[Pages 5871-5876]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-2226]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 60, No. 20 / Tuesday, January 31, 1995 /
Proposed Rules
[[Page 5871]]
GENERAL ACCOUNTING OFFICE
4 CFR Part 21
General Accounting Office; Administrative Practice and Procedure,
Bid Protest Regulations, Government Contracts
AGENCY: General Accounting Office.
ACTION: Proposed rule.
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SUMMARY: The General Accounting Office (GAO) is proposing to revise its
Bid Protest Regulations to implement the Federal Acquisition
Streamlining Act of 1994 (FASA) and to conform GAO's current regulation
to the practice that has evolved at GAO since April 1991, when GAO last
revised part 21. The proposed revision will improve the overall
efficiency and effectiveness of the bid protest process at GAO by
streamlining the process, by reducing the costs of pursuing protests at
GAO for all parties, and by permitting GAO to resolve protests as
expeditiously as possible. FASA requires that the implementing
regulation be concise and easily understood by vendors and government
officials, and the proposed revision reflects this requirement. The
proposed revision shortens the regulation, even though several
provisions implementing FASA are added.
DATES: Comments must be submitted on or before April 3, 1995.
ADDRESSES: Comments should be addressed to: Michael R. Golden,
Assistant General Counsel, General Accounting Office, 441 G Street,
NW., Washington, DC 20548.
FOR FURTHER INFORMATION CONTACT: Michael R. Golden (Assistant General
Counsel) or Linda S. Lebowitz (Senior Attorney), 202-512-9732.
SUPPLEMENTARY INFORMATION: The proposed revision to the General
Accounting Office's (GAO) Bid Protest Regulations implements statutory
changes contained in the Federal Acquisition Streamlining Act of 1994
(FASA), Pub. L. 103-355, 108 Stat. 3243, dated October 13, 1994. The
proposed revision is based on GAO's experience with the prior revision
to its regulation, including the use of protective orders and hearings,
which became effective on April 1, 1991 (56 FR 3759). The proposed
revision conforms GAO's current regulation to the practice that has
evolved at GAO since April 1991, and will improve the bid protest
process at GAO. In revising its regulation, GAO was guided by the
statutory mandate in sec. 10002(e) of FASA that regulations
implementing FASA be concise and easily understood by vendors and
government officials, and by the principle that GAO's bid protest
process remain as uncomplicated and informal as possible, consistent
with the goal of providing expeditious and meaningful relief to vendors
wrongfully excluded from procurements. More specifically, the proposed
revision will streamline the process, reduce the costs of pursuing
protests at GAO for all parties, and permit GAO to resolve protests as
expeditiously as possible. The regulation is shortened overall, even
though several new provisions are added in order to implement FASA.
Redundancies are eliminated and language changes reflect an effort to
make the regulation clearer and more readable.
Explanations of significant revisions to GAO's Bid Protest
Regulations are set forth below.
GAO's proposed regulation at 4 CFR 21.1(f), currently at
Sec. 21.3(b), requires that if a protester believes that the protest
includes confidential information which should be withheld, the
protester must advise GAO of this fact on the front page of the protest
submission and must file, simultaneously with the filing of its protest
with GAO, a redacted copy of the protest which omits the information.
GAO does not anticipate that this requirement will impose a significant
burden since a protester is currently obligated to identify, ``wherever
it appears,'' information in its protest that it believes should be
withheld as permitted by law.
Paragraphs (c) and (d) of Sec. 21.3 implement the statutory
requirement set forth in sec. 1015 and 1065 of FASA that if any party
to a protest filed with GAO so requests, the agency shall produce a
protest file. The statutory language of those sections calls for the
implementing regulation to be consistent with the regulation regarding
the preparation and submission of the so-called ``rule 4 file'' in
protests before the General Services Administration Board of Contract
Appeals (GSBCA). In light of that direction, and taking into account
the somewhat longer period for deciding protests filed with GAO, the
proposed regulation provides that when requested, the agency is to
prepare and submit a protest file to GAO, the protester, and any
intervenors within 20 calendar days after the agency's receipt of the
request. (In revising its current regulation, GAO has converted from
``working days'' to ``calendar days'' consistent with the requirements
of FASA.)
GAO believes that requiring an agency to produce a protest file,
when one is requested, early in the bid protest process will make it
easier to carry out the mandate in sec. 1403 of FASA that supplemental
protests not delay the issuance of a decision by GAO. Currently,
supplemental protests are generally based on information included in
the documents contained in the agency report, and must generally be
filed within 10 working days of the protester's receipt of the
documents. GAO believes that if an agency provides the relevant
documents early in the process, supplemental protests will be filed
earlier. Consequently, the meaningful protest issues which need to be
addressed by GAO will be identified by the parties earlier in the
process, thus benefiting all parties in terms of time and costs.
Further, GAO believes that early production of the protest file will
allow bid protests to be resolved as expeditiously as possible, which
will shorten procurement suspensions.
As with the ``rule 4 file,'' the protest file under the proposed
regulation will contain only pre-existing documents, rather than
documents prepared in response to the protest. As detailed in paragraph
(e) of Sec. 21.3, the contracting officer's statement of the relevant
facts and a memorandum of law are to be filed within 35 calendar days
after the agency receives telephone notice of the protest from GAO.
Section 21.5(h), currently Sec. 21.3(m)(10), removes GAO's
consideration of subcontract protests where the subcontract is ``by or
for the government''; rather, GAO will consider [[Page 5872]] protests
concerning awards of subcontracts by or for a Federal agency as
nonstatutory protests in accordance with Sec. 21.13 where the agency
awarding the prime contract has requested in writing that subcontract
protests be decided by GAO. In US West Communications Services, Inc. v.
United States, 940 F.2d 622 (Fed. Cir. 1991), the court called into
question the GSBCA's review of a prime contractor's award of a
subcontract based on the language in the Competition in Contracting Act
of 1984, 40 U.S.C. 759(f)(9)(A) (1988), which authorizes the GSBCA to
review protests of a solicitation by a Federal agency for bids or
proposals for a proposed contract or contract. GAO's statutory language
in this regard is basically identical to that of the GSBCA. In the
absence of any language in FASA which addresses this matter, GAO
believes that it is appropriate to treat protests against awards of
subcontracts by or for a Federal agency as nonstatutory protests.
Comments concerning the proposed rule should reference file number
B-259187. Comments may be filed by hand delivery or mail at the address
in the address line, or comments may be filed by facsimile transmission
at 202-512-9749.
List of Subjects in 4 CFR Part 21
Administrative practice and procedure, Bid protest regulations,
Government contracts.
For the reasons set out in the preamble, title 4, chapter I,
subchapter B, part 21 of the Code of Federal Regulations is proposed to
be revised to read as follows:
1. Part 21 is revised to read as follows:
PART 21--BID PROTEST REGULATIONS
Sec.
21.0 Definitions.
21.1 Filing a protest.
21.2 Time for filing.
21.3 Notice of protest, submission of agency report, and time for
filing of comments on report.
21.4 Protective orders.
21.5 Protest issues not for consideration.
21.6 Withholding of award and suspension of contract performance.
21.7 Hearings.
21.8 Remedies.
21.9 Time for decision by GAO.
21.10 Express option.
21.11 Effect of judicial proceedings.
21.12 Distribution of decisions.
21.13 Nonstatutory protests.
21.14 Request for reconsideration.
Authority: 31 U.S.C. 3551-3556.
Sec. 21.0 Definitions.
(a) Interested party means an actual or prospective bidder or
offeror whose direct economic interest would be affected by the award
of a contract or by the failure to award a contract.
(b) Intervenor means an awardee if the award has been made or, if
no award has been made, all bidders or offerors who appear to have a
substantial prospect of receiving an award if the protest is denied.
(c) Federal agency means any executive department or independent
establishment in the executive branch, including any wholly owned
government corporation, and any establishment in the legislative or
judicial branch, except the Senate, the House of Representatives and
the Architect of the Capitol and any activities under his direction.
(d) Contracting agency means a Federal agency which has awarded or
proposes to award a contract under a protested procurement.
(e) Days are calendar days. In computing a period of time for the
purpose of this part, the day from which the period begins to run is
not counted. When the last day of the period is a Saturday, Sunday, or
Federal holiday, the period extends to the next day that is not a
Saturday, Sunday, or Federal holiday. Similarly, when the General
Accounting Office (GAO), or another Federal agency where a filing is
due, is closed for all or part of the last day, the period extends to
the next day on which the agency is open.
(f) Adverse agency action is any action or inaction by a
contracting agency which is prejudicial to the position taken in a
protest filed with the agency, including a decision on the merits of a
protest; the opening of bids or receipt of proposals, the award of a
contract, or the rejection of a bid despite a pending protest; or
contracting agency acquiescence in continued and substantial contract
performance.
(g) A document is filed on a particular day when it is received by
GAO by 5:30 p.m., eastern time, on that day. A document may be filed by
hand delivery or mail; parties wishing to file a document by facsimile
transmission or other electronic means must ensure that the necessary
equipment is operational at GAO's Procurement Law Control Group and
that the entire document is received by 5:30 p.m. on the due date.
Sec. 21.1 Filing a protest.
(a) An interested party may protest a solicitation or other request
by a Federal agency for offers for a contract for the procurement of
property or services; the cancellation of such a solicitation or other
request; an award or proposed award of such a contract; and a
termination of such a contract, if the protest alleges that the
termination was based on improprieties in the award of the contract.
(b) Protests must be in writing and addressed as follows: General
Counsel, General Accounting Office, 441 G Street, NW., Washington, DC
20548, Attention: Procurement Law Control Group.
(c) A protest filed with GAO shall:
(1) Include the name, address, and telephone number of the
protester,
(2) Be signed by the protester or its representative,
(3) Identify the contracting agency and the solicitation and/or
contract number,
(4) Set forth a detailed statement of the legal and factual grounds
of protest including copies of relevant documents,
(5) Specifically request a ruling by the Comptroller General of the
United States,
(6) State the form of relief requested, and
(7) Request specific documents relevant to the protest grounds.
(d) The protester shall furnish a copy of the protest to the
individual or location designated by the contracting agency in the
solicitation for receipt of protests, or if there is no designation, to
the contracting officer. The designated individual or location (or, if
applicable, the contracting officer) must receive a copy of the protest
no later than 1 day after the protest is filed with GAO. The protest
document must indicate that a copy is being furnished within 1 day to
the appropriate individual or location.
(e) No formal briefs or other technical forms of pleading or motion
are required. Protest submissions should be concise and logically
arranged, and should clearly state legally sufficient grounds of
protest. Protests of different procurements should be separately filed.
(f) GAO will not withhold material submitted by a protester from
any party outside the government unless it is permitted to do so by
law. If the protester believes that the protest contains information
which should be withheld, a statement advising of this fact must be on
the front page of the submission. This information must be identified
wherever it appears, and the protester must file, simultaneously with
the filing of its protest with GAO, a redacted copy of the protest
which omits the information.
(g) Parties who intend to file documents containing classified
information should notify GAO in advance to obtain advice regarding
[[Page 5873]] procedures for filing and handling the information.
(h) A protest may be dismissed for failure to comply with any of
the requirements of this section. However, a protest shall not be
dismissed for failure to comply with paragraph (d) of this section
where the contracting officer has actual knowledge of the basis of
protest, or the agency, in the preparation of its report, was not
prejudiced by the protester's noncompliance.
Sec. 21.2 Time for filing.
(a)(1) Protests based upon alleged improprieties in a solicitation
which are apparent prior to bid opening or the time set for receipt of
initial proposals shall be filed prior to bid opening or the time set
for receipt of initial proposals. In procurements where proposals are
requested, alleged improprieties which do not exist in the initial
solicitation but which are subsequently incorporated into the
solicitation must be protested not later than the next closing time for
receipt of proposals following the incorporation.
(2) In cases other than those covered in paragraph (a)(1) of this
section, protests shall be filed not later than 14 days after the basis
of protest is known or should have been known, whichever is earlier.
(3) If a timely agency-level protest was previously filed, any
subsequent protest to GAO filed within 14 days of actual or
constructive knowledge of initial adverse agency action will be
considered, provided the agency-level protest was filed in accordance
with paragraphs (a)(1) and (a)(2) of this section, unless the
contracting agency imposes a more stringent time for filing, in which
case the agency's time for filing will control. In cases where an
alleged impropriety in a solicitation is timely protested to a
contracting agency, any subsequent protest to GAO will be considered
timely if filed within the 14-day period provided by this paragraph,
even if filed after bid opening or the closing time for receipt of
proposals.
(b) Protests untimely on their face may be dismissed. A protester
shall include in its protest all information establishing the
timeliness of the protest; a protester will not be permitted to
introduce for the first time in a request for reconsideration
information necessary to establish that the protest was timely.
(c) GAO, for good cause shown, or where it determines that a
protest raises issues significant to the procurement system, may
consider an untimely protest.
Sec. 21.3 Notice of protest, submission of agency report, and time for
filing of comments on report.
(a) GAO shall notify the contracting agency by telephone within 1
day after the filing of a protest, and shall promptly send a written
confirmation to the contracting agency and an acknowledgment to the
protester. The contracting agency shall immediately give notice of the
protest to the contractor if award has been made or, if no award has
been made, to all bidders or offerors who appear to have a reasonable
prospect of receiving an award. The contracting agency shall furnish
copies of the protest submissions to those parties, except where
disclosure of the information is prohibited by law, with instructions
to communicate further directly with GAO. All parties shall furnish
copies of any communications to the contracting agency and to other
participating parties.
(b) A contracting agency which believes that the protest or
specific protest allegations should be dismissed before submission of
an agency report should file a request for dismissal as soon as
practicable.
(c) If any party to the protest so requests, the contracting agency
shall prepare a protest file and provide a copy to GAO within 20 days
after the agency's receipt of the request. The contracting agency shall
simultaneously furnish a copy of the protest file to the protester and
any intervenors. The protest file shall include an index and a copy of
all relevant documents including, as appropriate: the protest; the bid
or proposal submitted by the protester; the bid or proposal of the firm
which is being considered for award, or whose bid or proposal is being
protested; all evaluation documents; the solicitation, including the
specifications or portions relevant to the protest; the abstract of
bids or offers or relevant portions; and any other relevant documents.
The contracting agency shall provide any additional documents requested
in the protest or explain why it is not required to produce the
documents. The contracting agency may request that the protester
produce relevant documents that are not in the agency's possession.
(d) Information exempt from mandatory disclosure under the Freedom
of Information Act, 5 U.S.C. 552, may be omitted in the copy of the
protest file provided to the parties, unless counsel for a party has
been admitted to a protective order issued in the protest, in which
case the file shall be provided to counsel in accordance with the
protective order.
(e) The contracting agency shall file a report on the protest with
GAO within 35 days after the telephone notice of the protest from GAO.
The report shall include all relevant documents as set forth in
paragraph (c) of this section, except to the extent already produced in
the protest file, as well as the contract- ing officer's statement of
the relevant facts and a memorandum of law.
(f) Subject to any protective order issued in the protest, the
contracting agency shall simultaneously furnish a copy of the report to
the protester and any intervenors. The copy of the report filed with
GAO shall list the parties who have been furnished copies of the report
and shall identify any documents, or portions of documents, withheld
from any party and the reason for the with- holding. Where a protester
does not have counsel admitted to a protective order and documents are
withheld from the protester in accordance with this part, the agency
shall provide documents adequate to inform the protester of the basis
of the agency's position.
(g) The contracting agency may request an extension of time for the
submission of the protest file or agency report. Extensions will be
granted sparingly.
(h) The protester may request additional documents when their
existence or relevance first becomes evident. Except when authorized by
GAO, any request for additional documents must be filed with GAO and
the contracting agency not later than 2 days after their existence or
relevance is known or should have been known, whichever is earlier. The
contracting agency shall provide the requested documents and an index
to GAO and the other parties within 5 days or explain why it is not
required to produce the documents.
(i) Upon the request of a party, GAO will decide whether the
contracting agency must provide any withheld documents and whether this
should be done under a protective order. When withheld documents are
provided, the protester's comments on the agency report shall be filed
within 10 days after its receipt of the documents, unless otherwise
specified by GAO.
(j) Comments on the agency report shall be filed with GAO within 14
days after receipt of the report, with a copy provided to the
contracting agency and other participating parties. The protest shall
be dismissed unless the protester files comments or a written statement
requesting that the case be decided on the existing record, or requests
an extension of time within the 14-day period. Unless otherwise advised
by the [[Page 5874]]
protester, GAO will assume the protester received the agency report by
the due date specified in the acknowledgment of protest furnished by
GAO. Upon a showing that the specific circumstances of a protest
require a period longer than 14 days for the submission of comments,
GAO will set a new date for the submission of comments. Extensions will
be granted sparingly.
(k) GAO may permit or request the submission of additional
statements by the parties and by other parties not participating in the
protest as may be necessary for the fair resolution of the protest.
Sec. 21.4 Protective orders.
(a) At the request of a party or on its own initiative, GAO may
issue a protective order controlling the treatment of protected
information. Such information may include proprietary, confidential, or
source-selection-sensitive material, as well as other information the
release of which could result in a competitive advantage to one or more
firms. The protective order shall establish procedures for application
for access to protected information, identification and safeguarding of
that information, and submission of redacted copies of documents
omitting protected information. Because a protective order serves to
facilitate the pursuit of a protest by a protester through counsel, it
is, in the first instance, the responsibility of protester's counsel to
request that a protective order be issued and to submit timely
applications for admission under that order.
(b) If no protective order has been issued, the agency may withhold
from the parties those portions of its report which would ordinarily be
subject to a protective order. GAO will review in camera all
information not released to the parties.
(c) After a protective order has been issued, counsel or
consultants retained by counsel appearing on behalf of a party may
apply for admission under the order by submitting an application to
GAO, with copies furnished simultaneously to all parties. The
application shall establish that the applicant is not involved in
competitive decision-making for any firm that could gain a competitive
advantage from access to the protected information and that there will
be no significant risk of inadvertent disclosure of protected
information. Objections to an applicant's admission shall be raised
within 2 days after receipt of the application, although GAO may
consider objections raised after that time.
(d) Any violation of the terms of a protective order may result in
the imposition of sanctions as GAO deems appropriate, including
referral to appropriate bar associations or other disciplinary bodies
and restricting the individual's practice before GAO.
Sec. 21.5 Protest issues not for consideration.
GAO shall summarily dismiss a protest or specific protest
allegations that do not state a valid basis for protest, are untimely
(unless considered pursuant to Sec. 21.2(c)), or are not properly
before GAO. A protest or specific protest allegations may be dismissed
anytime sufficient information is obtained by GAO warranting dismissal.
Where an entire protest is dismissed, no agency report shall be filed;
where specific protest allegations are dismissed, an agency report
shall be filed on the remaining allegations. Among the protest bases
which shall be dismissed are the following:
(a) Contract administration. The administration of an existing
contract is within the discretion of the contracting agency. Disputes
between a contractor and the agency are resolved pursuant to the
disputes clause of the contract and the Contract Disputes Act of 1978.
41 U.S.C. 601-613.
(b) Small Business Administration issues.
(1) Small Business Size Standards and Standard Industrial
Classification. Challenges of established size standards or the size
status of particular firms, and challenges of the selected standard
industrial classification may be reviewed solely by the Small Business
Administration. 15 U.S.C. 637(b)(6).
(2) Small Business Certificate of Competency Program. Any referral
made to the Small Business Administration pursuant to sec. 8(b)(7) of
the Small Business Act, or any issuance of, or refusal to issue, a
certificate of competency under that section will not be reviewed by
GAO absent a showing of possible bad faith on the part of government
officials or a failure to consider vital information bearing on the
firm's responsibility. 15 U.S.C. 637(b)(7).
(3) Procurements under sec. 8(a) of the Small Business Act. Under
that section, since contracts are entered into with the Small Business
Administration at the contracting officer's discretion and on such
terms as are agreed upon by the procuring agency and the Small Business
Administration, the decision to place or not to place a procurement
under the 8(a) program is not subject to review absent a showing of
possible bad faith on the part of government officials or that
regulations may have been violated. 15 U.S.C. 637(a).
(c) Affirmative determination of responsibility by the contracting
officer. Because the determination that a bidder or offeror is capable
of performing a contract is based in large measure on subjective
judgments which generally are not readily susceptible of reasoned
review, an affirmative determination of responsibility will not be
reviewed absent a showing of possible bad faith on the part of
government officials or that definitive responsibility criteria in the
solicitation were not met.
(d) Procurement protested to the General Services Administration
Board of Contract Appeals. Interested parties may protest a procurement
or proposed procurement of automated data processing equipment and
services to the General Services Administration Board of Contract
Appeals. After a protest to the Board, the same procurement generally
may not be the subject of a protest to GAO. 40 U.S.C. 759(f).
(e) Protests not filed either in GAO or the contracting agency
within the time limits set forth in Sec. 21.2.
(f) Protests which lack a detailed statement of the legal or
factual grounds of protest as required by Sec. 21.1(c)(4), or which
fail to clearly state legally sufficient grounds of protest as required
by Sec. 21.1(e).
(g) Procurements by agencies other than Federal agencies as defined
by sec. 3 of the Federal Property and Administrative Services Act of
1949, 40 U.S.C. 472. Protests of procurements or proposed procurements
by agencies such as the U.S. Postal Service, the Federal Deposit
Insurance Corporation, and nonappropriated fund activities are beyond
GAO's bid protest jurisdiction as established in 31 U.S.C. 3551-3556.
(h) Subcontract protests. GAO will not consider a protest of the
award or proposed award of a subcontract except where the agency
awarding the prime contract has requested in writing that subcontract
protests be decided pursuant to Sec. 21.13.
Sec. 21.6 Withholding of award and suspension of contract performance.
(a) The following requirements regarding the withholding of award
and the suspension of contract performance when a protest is filed with
GAO are set forth in 31 U.S.C. 3553 (c) and (d). There is an additional
requirement contained in 48 CFR 33.104(d) that the contracting officer
give written notice to the protester and other parties of any
[[Page 5875]] decision to proceed with award or to continue contract
performance. The requirements are included here for informational
purposes.
(b) When the contracting agency receives notice of a protest from
GAO prior to award of a contract, it may not award a contract under the
protested procurement while the protest is pending unless the head of
the procuring activity responsible for award of the contract determines
in writing and reports to GAO that urgent and compelling circumstances
significantly affecting interests of the United States will not permit
waiting for GAO's decision. This finding may be made only if the award
is otherwise likely to occur within 30 days.
(c) When the contracting agency has awarded the contract, but
receives notice of a protest from GAO within 10 days of the date of
contract award, or within 5 days after the debriefing date offered to
an unsuccessful offeror for any debriefing that is requested and, when
requested, is required, the agency shall immediately direct the
contractor to cease contract performance and to suspend related
activities that may result in additional obligations being incurred by
the government under that contract while the protest is pending. The
contracting officer responsible for award of the contract may authorize
contract performance notwithstanding the pending protest if he or she
determines in writing and reports to GAO that:
(1) Performance of the contract is in the government's best
interest, or
(2) Urgent and compelling circumstances significantly affecting
interests of the United States will not permit waiting for GAO's
decision.
Sec. 21.7 Hearings.
(a) At the request of a party or on its own initiative, GAO may
conduct a hearing in connection with a protest. The request shall set
forth the reasons why a hearing is needed.
(b) Prior to the hearing, GAO may hold a pre-hearing conference to
discuss and resolve matters such as the procedures to be followed, the
issues to be considered, and the witnesses who will testify.
(c) Hearings generally will be conducted as soon as practicable
after receipt by the parties of the agency report and relevant
documents. Although hearings ordinarily will be conducted at GAO in
Washington, DC, hearings may, at the discretion of GAO, be conducted at
other locations.
(d) All parties participating in the protest shall be invited to
attend the hearing. Others may be permitted to attend as observers and
may participate as allowed by GAO's hearing official. In order to
prevent the improper disclosure of protected information at the
hearing, GAO's hearing official may restrict attendance during all or
part of the proceeding.
(e) Hearings shall normally be recorded and/or transcribed. If a
recording and/or transcript is made, any party may obtain copies at its
own expense.
(f) If a witness whose attendance has been requested by GAO fails
to attend the hearing or fails to answer a relevant question, GAO may
draw an inference unfavorable to the party for whom the witness would
have testified.
(g) If a hearing is held, no separate comments on the agency report
should be submitted unless specifically requested by GAO. All parties
may file consolidated comments on the hearing and the agency report
with GAO, with copies furnished to the other parties, within 7 days
after the hearing was held or as specified by GAO. By the due date, if
the protester has not filed comments or a written statement requesting
that the case be decided on the existing record, GAO may dismiss the
protest.
(h) In post-hearing comments, the parties should cite to specific
testimony during the hearing relevant to the disposition of the
protest.
Sec. 21.8 Remedies.
(a) If GAO determines that a solicitation, cancellation of a
solicitation, termination of a contract, proposed award, or award does
not comply with statute or regulation, it shall recommend that the
contracting agency implement any combination of the following remedies:
(1) Refrain from exercising options under the contract;
(2) Terminate the contract;
(3) Recompete the contract;
(4) Issue a new solicitation;
(5) Award a contract consistent with statute and regulation; or
(6) Such other recommendation(s) as GAO determines necessary to
promote compliance.
(b) In determining the appropriate recommendation(s), GAO shall,
except as specified in paragraph (c) of this section, consider all
circumstances surrounding the procurement or proposed procurement
including the seriousness of the procurement deficiency, the degree of
prejudice to other parties or to the integrity of the competitive
procurement system, the good faith of the parties, the extent of
performance, the cost to the government, the urgency of the
procurement, and the impact of the recommendation(s) on the contracting
agency's mission.
(c) If the head of the procuring activity makes the finding
referred to in Sec. 21.6(c)(1) that performance of the contract
notwithstanding a pending protest is in the government's best interest,
GAO shall make its recommendation(s) under paragraph (a) of this
section without regard to any cost or disruption from terminating,
recompeting, or reawarding the contract.
(d) If GAO determines that a solicitation, proposed award, or award
does not comply with statute or regulation, it may recommend that the
contracting agency pay the protester the costs of:
(1) Filing and pursuing the protest, including attorneys' fees and
consultant and expert witness fees; and
(2) Bid and proposal preparation.
(e) If the contracting agency decides to take corrective action in
response to a protest, GAO may recommend that the agency pay the
protester the costs of filing and pursuing the protest, including
attorneys' fees and consultant and expert witness fees. The protester
shall file any request that GAO recommend that costs be paid within 14
days after being advised that the contracting agency has decided to
take corrective action. The protester shall furnish a copy of its
request to the contracting agency, which may file a response within 14
days after receipt of the request, with a copy furnished to the
protester.
(f)(1) If GAO recommends that the contracting agency pay the
protester the costs of filing and pursuing the protest and/or of bid or
proposal preparation, the protester and the agency shall attempt to
reach agreement on the amount of costs. The protester shall file its
claim for costs, detailing and certifying the time expended and costs
incurred, with the contracting agency within 90 days after receipt of
GAO's recommendation that the agency pay the protester its costs.
Failure to file the claim within that time shall result in forfeiture
of the protester's right to recover its costs. GAO may consider an
untimely claim for good cause shown.
(2) The contracting agency shall issue a decision on the claim for
costs as soon as practicable after the claim is filed. If the protester
and the contracting agency cannot reach agreement within a reasonable
time, GAO may, upon request of the protester, recommend the amount of
costs the agency should pay. In such cases, GAO may also recommend that
the contracting agency pay the protester the costs of pursuing the
claim for costs before GAO. [[Page 5876]]
(3) The contracting agency shall notify GAO within 60 days after
GAO recommends the amount of costs the agency should pay the protester
of the action taken by the agency in response to the recommendation.
Sec. 21.9 Time for decision by GAO.
(a) GAO shall issue a decision on a protest within 125 days after
it is filed.
(b) In protests where GAO uses the express option procedures in
Sec. 21.10, GAO shall issue a decision on a protest within 65 days
after it is filed.
(c) GAO, to the maximum extent practicable, shall resolve a timely
supplemental protest adding one or more new grounds to an existing
protest, within the time limit established in paragraph (a) of this
section for decision on the initial protest. If an amended protest
cannot be resolved within that time limit, GAO may resolve the amended
protest using the express option procedures in Sec. 21.10.
Sec. 21.10 Express option.
(a) Any party may request that GAO decide a protest on an ``express
option'' expedited schedule.
(b) The expedited schedule will be adopted at the discretion of GAO
and only in those cases suitable for resolution within 65 days.
(c) Requests for an expedited schedule shall be in writing and
received in GAO no later than 3 days after the protest or supplemental
protest is filed. GAO will promptly notify the parties whether the case
will be handled on an expedited schedule.
(d) When the express option is used, the following schedule applies
instead of those deadlines in Sec. 21.3 and Sec. 21.7:
(1) The contracting agency shall file a complete report with GAO
and the parties within 20 days after it receives notice from GAO that
the express option will be used.
(2) Comments on the agency report shall be filed with GAO and the
other parties within 7 days after receipt of the report.
(3) If a hearing is held, no separate comments on the agency report
under paragraph (d)(2) of this section should be submitted unless
specifically requested by GAO. Consolidated comments on the agency
report and hearing shall be filed within 7 days after the hearing was
held or as specified by GAO.
(4) If all parties agree, GAO will resolve protests decided on an
expedited schedule by a summary decision.
(5) Where circumstances demonstrate that a case is no longer
suitable for resolution on an expedited schedule, GAO shall establish a
new schedule for submissions by the parties.
Sec. 21.11 Effect of judicial proceedings.
(a) A protester must immediately advise GAO of any court proceeding
which involves the subject matter of a pending protest and file copies
of all relevant court documents.
(b) GAO will dismiss any protest where the matter involved is the
subject of litigation before a court of competent jurisdiction, or
where the matter involved has been decided on the merits by a court of
competent jurisdiction. GAO may, at the request of a court, issue an
advisory opinion on a bid protest issue that is before the court. In
these cases, unless a different schedule is established, the times
provided in part 21 for filing the agency report (Sec. 21.3(e)), filing
comments on the report (Sec. 21.3(j)), holding a hearing and filing
comments (Sec. 21.7), and issuing a decision (Sec. 21.9) shall apply.
Sec. 21.12 Distribution of decisions.
(a) Unless it contains protected information, a copy of a decision
shall be provided to the protester, any intervenors, the head of the
contracting activity responsible for the protested procurement, and the
senior procurement executive of each Federal agency involved; a copy
shall also be made available to the public. A copy of a decision
containing protected information shall be provided only to the
contracting agency and to individuals admitted to any protective order
issued in the protest. A public version omitting the protected
information shall be prepared wherever possible.
(b) Decisions are available from GAO's electronic bulletin board.
Sec. 21.13 Nonstatutory protests.
(a) GAO will consider protests concerning awards of subcontracts by
or for a Federal agency, sales by a Federal agency, or procurements by
agencies of the government other than Federal agencies as defined in
Sec. 21.0(c) if the agency involved has agreed in writing to have its
protests decided by GAO.
(b) The provisions of this part shall apply to nonstatutory
protests except for the provisions of Sec. 21.3(c) pertaining to the
contracting agency protest file and Sec. 21.8(d) pertaining to
recommendations for the payment of costs. The provision for the
withholding of award and the suspension of contract performance, 31
U.S.C. 3553 (c) and (d), also does not apply to nonstatutory protests.
Sec. 21.14 Request for reconsideration.
(a) The protester, any intervenor, and any Federal agency involved
in the protest may request reconsideration of a bid protest decision.
GAO will not consider a request for reconsideration that does not
contain a detailed statement of the factual and legal grounds upon
which reversal or modification is deemed warranted, specifying any
errors of law made or information not previously considered.
(b) A request for reconsideration of a bid protest decision shall
be filed, with copies to the parties who participated in the protest,
not later than 14 days after the basis for reconsideration is known or
should have been known, whichever is earlier.
(c) GAO will summarily dismiss any request for reconsideration that
fails to state a valid basis for reconsideration or is untimely. The
filing of a request for reconsideration does not require the
withholding of award and the suspension of contract performance under
31 U.S.C. 3553 (c) and (d).
Robert P. Murphy,
General Counsel.
[FR Doc. 95-2226 Filed 1-30-95; 8:45 am]
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