[Federal Register Volume 61, Number 85 (Wednesday, May 1, 1996)]
[Proposed Rules]
[Pages 19205-19211]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-10831]
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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. 61, No. 85 / Wednesday, May 1, 1996 /
Proposed Rules
[[Page 19205]]
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 requirement in the National
Defense Authorization Act for Fiscal Year 1996 that GAO, for new
protests filed on or after August 8, 1996, issue bid protest decisions
within 100 calendar days from the time a protest is filed at GAO. The
proposed revision will facilitate GAO's meeting the new statutory
deadline for issuing bid protest decisions and will improve the overall
effectiveness of the bid protest process at GAO.
DATES: Comments must be submitted on or before July 1, 1996.
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: On February 21, 1996, the General Accounting
Office (GAO) published an advance notice of proposed rulemaking (61 FR
6579) soliciting comments on how its bid protest procedures could be
revised in order to facilitate GAO's meeting a new statutory deadline
for issuing bid protest decisions, while also improving the overall
effectiveness of the bid protest process at GAO. In this regard, the
National Defense Authorization Act for Fiscal Year 1996, Pub. L. 104-
106, 110 Stat. 186, which was enacted on February 10, 1996, requires
GAO, effective August 8, 1996, to issue bid protest decisions within
100 calendar days from the time a protest is filed at GAO, shortening
the current 125-calendar-day requirement. (Any further reference to
``days'' means ``calendar days.'') In the advance notice, GAO
specifically invited comments on changing its longstanding timeliness
rule to permit the filing of a protest 5 days after a statutorily
required debriefing, and on the feasibility of promoting early document
production in appropriate cases to facilitate the expeditious
resolution of bid protests. GAO also invited the submission of ideas
regarding the appropriate length of regulatorily imposed deadlines, as
well as suggestions concerning the use of accelerated or alternative
procedures to more expeditiously resolve bid protests.
Interested persons were invited to submit comments on GAO's advance
notice by March 22, 1996. We received written comments from 10 Federal
agencies, 2 bar associations, 2 law firms, 1 industry association, and
2 vendors. In preparing this proposed rule, we have carefully
considered all comments received. The commenters generally recognized
the effectiveness of our previous efforts to streamline the bid protest
process at GAO and to provide meaningful relief to vendors wrongfully
excluded from procurements, as reflected in the final rule published on
August 10, 1995 (60 FR 40737) and effective October 1, 1995. The
commenters made suggestions on how GAO could improve the internal
management of the bid protest process. While we are adopting many of
the suggested management practices and we expect to implement others in
the near future, we believe that regulatory implementation of such
improvements is unnecessary. For example, we are focusing on promptly
resolving early requests for partial or complete dismissals of
protests. We are also establishing procedures to routinely issue
protective orders, where warranted, shortly after a protest is filed.
Significant proposed revisions to GAO's Bid Protest Regulations are
set forth below.
Statutorily Imposed Deadlines
In accordance with sec. 5501 of the National Defense Authorization
Act for Fiscal Year 1996, GAO proposes to revise paragraph (c) of
Sec. 21.3 to require a contracting agency to file its report in
response to a protest with GAO within 30 days, as opposed to 35 days,
after receiving telephone notice of the protest from GAO. GAO also
proposes to revise paragraph (a) of Sec. 21.9 to require our Office to
issue a decision on a bid protest within 100 days after the protest is
filed with our Office.
Timeliness Rules
Consistent with the suggestion of several commenters, GAO's
proposed regulation at Sec. 21.2(a)(2) requires that protests, except
those alleging a solicitation impropriety, filed under a procurement in
which a debriefing is required by law be filed not later than 5 days
after the debriefing; in all other cases, the protest is required to be
filed within 10 days after the basis of protest is known or should have
been known, whichever is earlier. (Wherever possible throughout this
proposed rule in the interests of simplification and user-friendliness,
GAO proposes to establish filing times using multiples of ``five''
days. For example, GAO has reduced the ``knew/should have known''
timeliness rule from 14 days to 10 days.) GAO believes that this
proposed change to the timeliness rule will help to ensure the prompt
and fair resolution of bid protests.
Consistent with the suggestion of several commenters, GAO proposed
to add a new paragraph (a)(4) to Sec. 21.2 which reduces the time for
filing supplemental or amended protests from 14 days (pursuant to the
current ``knew/should have known'' timeliness rule) to 5 days after the
basis of protest is known or should have been known, whichever is
earlier. GAO believes that this shortening of time will permit GAO to
issue a consolidated decision resolving the supplemental or amended
protests, usually based on information provided with the agency report,
within the original 100-day period, thus avoiding rollover situations
or the issuance of separate decisions.
In paragraph (a)(3) of Sec. 21.2, GAO proposes to shorten the time
for filing a protest based on initial adverse agency action on an
agency-level protest from 14 days to 5 days. GAO agrees with those
commenters who suggested this proposed revision, recognizing that in
cases where there has been an agency-level protest, the protest issues
are usually already developed.
[[Page 19206]]
Early Document Production
In paragraph (d)(2) of Sec. 21.1, GAO proposes to add language
requiring a protester to explain the relevancy of specifically
requested documents to its protest grounds.
GAO received numerous comments concerning early document production
as a means of facilitating the prompt resolution of bid protests. As
previously addressed in the final rule at 60 FR 40737, 40738, while GAO
believes that early document production will promote the expeditious
resolution of appropriate bid protests and will result in other system
efficiencies, GAO also believes that early document production should
be accomplished on a voluntary basis, with an agency assessing the
value of such a procedure in a particular case. In this regard, in
paragraph (c) of Sec. 21.3, GAO proposes to explicitly recognize that
documents may be provided prior to the filing of the agency report or
may otherwise be made available to the parties, such as by allowing
parties to review documents on site at the agency prior to the filing
of the report.
GAO also proposes to add to paragraph (c) of Sec. 21.3 a
requirement that 5 days prior to the filing of the agency report, in
cases in which the protester has filed a request for specific
documents, that the agency provide to all parties and GAO a list of
those documents, or portions of documents, which the agency has
released to the protester or intends to produce in its report, and
those documents which the agency intends to withhold from the protester
and the reasons for the proposed withholding. GAO further proposes to
require that any objection to the scope of an agency's proposed
disclosure or nondisclosure of documents be filed with GAO and the
other parties within 1 day of receipt of this list.
Throughout Sec. 21.3, GAO proposes to clarify the language to
reflect the current longstanding practice that parties need not provide
entire documents if only certain portions of these documents are
relevant to the protest.
Several commenters expressed concern that in light of the shortened
timeframe for resolving bid protests, unsolicited submissions after the
filing of comments on the agency report or hearing are particularly
inappropriate. GAO proposes to address this concern by adding a
sentence to the proposed Sec. 21.3(j), currently at Sec. 21.3(i), which
states that the agency and other participating parties shall not submit
any additional statements unless the statements are specifically
requested by GAO or submitted after permission has been granted by GAO.
Other Regulatorily Imposed Deadlines
To facilitate meeting the shortened statutory deadline for issuing
bid protest decisions, GAO also proposes to reduce the following filing
periods: in the proposed Sec. 21.3(g), currently at Sec. 21.3(f), the
agency must respond to supplemental document requests within 2 days, as
opposed to 5 days; in the proposed Sec. 21.3(h), currently at
Sec. 21.3(g), when withheld documents are furnished, the protester's
comments on the agency report are due within the original comment
filing period, not 10 days after its receipt of the additional
documents, unless GAO specifically grants an extension; and in the
proposed Sec. 21.3(i), currently at Sec. 21.3(h), comments on the
agency report are due within 10 days, as opposed to 14 days, after
receipt of the report unless GAO specifically grants an extension. In
paragraph (b) of Sec. 21.14, GAO proposes to shorten the time for
filing requests for reconsideration (the resolution of such requests
are not subject to statutory deadlines) from 14 days to 10 days.
Accelerated or Alternative Procedures
Many commenters suggested that GAO promote the use of flexible
alternative procedures to expedite the resolution of bid protests.
Paragraph (e) of Sec. 21.10 already contains language allowing for the
establishment of accelerated schedules and the issuance of summary
decisions. In paragraph (e) of Sec. 21.10, GAO proposes to add language
specifically acknowledging that flexible alternative procedures may be
used to promptly and fairly resolve bid protests. In response to
numerous comments, GAO also proposes to add a new paragraph (f) to
Sec. 21.10, providing that GAO may conduct status conferences, by
telephone or in person, with all parties participating in the protest
to promote the expeditious development and resolution of the protest.
Miscellaneous Matters
GAO proposes to revise paragraph (e) of Sec. 21.0 in accordance
with the statutory requirement under 31 U.S.C. 3555(b) that GAO
prescribe procedures for the computation of days for all periods
described in Subchapter V, Chapter 35 of Title 31, United States Code.
In paragraph (a) of Sec. 21.3, and in response to one commenter's
suggestion, GAO proposes that all protest communications be sent by
means reasonably calculated to effect ``expeditious'' delivery,
clarifying what was intended by our previous use of ``timely''
delivery.
For annual reporting purposes, GAO proposes to add language to the
proposed Sec. 21.3(d), currently at Sec. 21.3(c), requiring agencies to
include a ``best estimate'' of the value of goods and services being
procured.
GAO proposes to remove the substantive content of paragraph (d) of
Sec. 21.5 addressing procurements protested to the General Services
Administration Board of Contract Appeals, see sec. 5101 of the National
Defense Authorization Act for Fiscal Year 1996, and proposes to replace
the substantive content with a new dismissal ground regarding the
violation of sec. 27 of the Office of Federal Procurement Policy (OFPP)
Act, 41 U.S.C. 423. Specifically, as proposed, Sec. 21.5(d) provides
that for any Federal procurement, GAO will not review an alleged
violation of subsections (a), (b), (c), and (d) of sec. 27 of the OFPP
Act, as amended by sec. 4304 of the National Defense Authorization Act
for Fiscal Year 1996, if the protester failed to report to the Federal
agency responsible for the procurement the information the protester
believes constitutes evidence of the offense within 14 days after the
protester first discovered the possible violation.
Comments
Comments concerning the proposed rule should reference file number
B-259187.2. Comments may be filed by hand delivery or mail at the
address in the address line, or 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, of the Code of Federal Regulations is proposed to be
amended 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.
[[Page 19207]]
21.9 Time for decision by GAO.
21.10 Express options, flexible alternative procedures, accelerated
schedules, summary decisions, and status conferences.
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 any period of time
described in Subchapter V, Chapter 35 of Title 31, United States Code,
including those described in this part, the day from which the period
begins to run is not counted, and 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
submission 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, mail, or commercial carrier; 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.
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 and facsimile numbers
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) Set forth all information establishing that the protester is an
interested party for the purpose of filing a protest,
(6) Set forth all information establishing the timeliness of the
protest,
(7) Specifically request a ruling by the Comptroller General of the
United States, and
(8) State the form of relief requested.
(d) In addition, a protest filed with GAO may:
(1) Request a protective order,
(2) Request specific documents, explaining the relevancy of the
documents to the protest grounds, and
(3) Request a hearing, explaining the reason that a hearing is
needed to resolve the protest.
(e) The protester shall furnish a complete copy of the protest,
including all attachments, 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 complete copy of the protest and all attachments no
later than 1 day after the protest is filed with GAO. The protest
document must indicate that a complete copy of the protest and all
attachments are being furnished within 1 day to the appropriate
individual or location.
(f) 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.
(g) Unless precluded by law, GAO will not withhold material
submitted by a protester from any party outside the government. 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, within 1 day after the filing of
its protest with GAO, a redacted copy of the protest which omits the
information.
(h) Parties who intend to file documents containing classified
information should notify GAO in advance to obtain advice regarding
procedures for filing and handling the information.
(i) A protest may be dismissed for failure to comply with any of
the requirements of this section, except for the items in paragraph (d)
of this section. In addition, a protest shall not be dismissed for
failure to comply with paragraph (e) 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) Except for protests covered by paragraph (a)(1) of this
section, protests filed by a party that has received a debriefing
required by law shall be filed not later than 5 days after the
debriefing, and in all other cases, not later than 10 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 5 days of actual or
[[Page 19208]]
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 5-day period provided by this paragraph,
even if filed after bid opening or the closing time for receipt of
proposals.
(4) Protests which supplement or amend a previously filed protest
shall be filed not later than 5 days after the basis of protest is
known or should have been known, whichever is earlier.
(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, unless the protest is dismissed
under this part, 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 all
protest communications to the contracting agency and to other
participating parties. All protest communications shall be sent by
means reasonably calculated to effect expeditious delivery.
(b) A contracting agency or intervenor 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) The contracting agency shall file a report on the protest with
GAO within 30 days after the telephone notice of the protest from GAO.
The report provided to the parties need not contain documents which the
agency has previously furnished or otherwise made available to the
parties in response to the protest. Five days prior to the filing of
the report, in cases in which the protester has filed a request for
specific documents, the agency shall provide to all parties and GAO a
list of those documents, or portions of documents, which the agency has
released to the protester or intends to produce in its report, and the
documents which the agency intends to withhold from the protester and
the reason for the proposed withholding. Any objection to the scope of
the agency's proposed disclosure or nondisclosure of documents must be
filed with GAO and the other parties within 1 day of receipt of this
list.
(d) The report shall include the contracting officer's statement of
the relevant facts, including a best estimate of the acquisition's
value, a memorandum of law, and a list and a copy of all relevant
documents, or portions of documents, not previously produced,
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;
the abstract of bids or offers; and any other relevant documents. In
appropriate cases, the contracting agency may request that the
protester produce relevant documents, or portions of documents, that
are not in the agency's possession.
(e) Subject to any protective order issued in the protest pursuant
to Sec. 21.4, 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. 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.
(f) The contracting agency may request an extension of time for the
submission of the agency report. Extensions will be granted on a case-
by-case basis.
(g) 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, or portions
of documents, and a list to GAO and the other parties within 2 days or
explain why it is not required to produce the documents.
(h) Upon the request of a party, GAO will decide whether the
contracting agency must provide any withheld documents, or portions of
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 the original comment filing period
unless GAO determines that an extension is appropriate.
(i) Comments on the agency report shall be filed with GAO within 10
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 10-day period. Unless otherwise advised
by the 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 10 days for the submission of
comments, GAO will set a new date for the submission of comments.
Extensions will be granted on a case-by-case basis.
(j) GAO may request or permit 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. The
agency and other participating parties shall not submit any additional
statements unless the statements are specifically requested by GAO or
submitted after permission has been granted by GAO.
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
[[Page 19209]]
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 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 such 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
any time 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 integrity. For any Federal procurement, GAO will
not review an alleged violation of subsections (a), (b), (c), or (d) of
sec. 27 of the Office of Federal Procurement Policy Act, 41 U.S.C. 423,
as amended by sec. 4304 of the National Defense Authorization Act for
Fiscal Year 1996, Pub. L. 104-106, 110 Stat. 186, February 10, 1996,
where the protester failed to report the information it believed
constituted evidence of the offense to the Federal agency responsible
for the procurement within 14 days after the protester first discovered
the possible violation.
(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 and
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(f).
(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.
Where a protest is filed with GAO, the contracting agency may be
required to withhold award and to suspend contract performance. The
requirements for the withholding of award and the suspension of
contract performance are set forth in 31 U.S.C. 3553 (c) and (d).
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, or by telephone.
(d) All parties participating in the protest shall be invited to
attend the hearing. Others may be permitted to
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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. Each party
shall file with GAO, within 5 days after the hearing was held or as
specified by GAO, a single document expressing any comments on both the
hearing and agency report, with copies furnished to the other parties.
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 shall dismiss the protest.
(h) In post-hearing comments, the parties should reference all
testimony and admissions in the hearing record that they consider
relevant, providing specific citations to the testimony and admissions
referenced.
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 determines 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 15
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 15
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 may result in forfeiture of
the protester's right to recover its costs.
(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 accordance with 31 U.S.C. 3554(c). In
such cases, GAO may also recommend that the contracting agency pay the
protester the costs of pursuing the claim for costs before GAO.
(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 100 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, or an amended protest, within the time limit established in
paragraph (a) of this section for decision on the initial protest. If a
supplemental or an amended protest cannot be resolved within that time
limit, GAO may resolve the supplemental or amended protest using the
express option procedures in Sec. 21.10.
Sec. 21.10 Express options, flexible alternative procedures,
accelerated schedules, summary decisions, and status conferences.
(a) At the request of a party or on its own initiative, GAO may
decide a protest using an express option.
(b) The express option will be adopted at the discretion of GAO and
only in those cases suitable for resolution within 65 days.
(c) Requests for the express option shall be in writing and
received in GAO no later than 5 days after the protest or supplemental
protest is filed. GAO will promptly notify the parties whether the case
will be handled using the express option.
(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 5 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 5 days after the hearing was
held or as specified by GAO.
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(4) Where circumstances demonstrate that a case is no longer
suitable for resolution using the express option, GAO shall establish a
new schedule for submissions by the parties.
(e) GAO may use flexible alternative procedures to promptly and
fairly resolve a protest, including establishing an accelerated
schedule and/or issuing a summary decision.
(f) GAO may conduct status conferences by telephone or in person
with all parties participating in a protest to promote the expeditious
development and resolution of the protest.
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 must file
with GAO 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 this part for filing the agency report (Sec. 21.3(c)),
filing comments on the report (Sec. 21.3(i)), 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 by electronic means.
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
protests decided by GAO.
(b) The provisions of this part shall apply to nonstatutory
protests except for the provision of 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 10 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. 96-10831 Filed 4-30-96; 8:45 am]
BILLING CODE 1610-01-P