[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
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 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]
BILLING CODE 1610-01-P