[Federal Register Volume 61, Number 145 (Friday, July 26, 1996)]
[Rules and Regulations]
[Pages 39219-39220]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18510]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Part 33

[FAC 90-40, FAR Case 95-309, Item XIII]
RIN 9000-AH10


Federal Acquisition Regulation; Agency Procurement Protests

AGENCIES: Department of Defense (DOD), General Services Administration 
(GSA), and National Aeronautics and Space Administration (NASA).

ACTION: Interim rule with request for comment.

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SUMMARY: The Civilian Agency Acquisition Council and the Defense 
Acquisition Regulations Council have agreed to an interim rule amending 
the Federal Acquisition Regulation (FAR) to provide for informal, 
procedurally simple, and inexpensive resolution of protests. This 
interim rule implements Executive Order 12979 which was signed by the 
President on October 25, 1995. This regulatory action was not subject 
to Office of Management and Budget review under Executive Order 12866, 
dated September 30, 1993, and is not a major rule under 5 U.S.C. 804.

DATES: Effective Date: July 26, 1996.
    Comment Date: Comments should be submitted to the FAR Secretariat 
at the address shown below on or before September 24, 1996 to be 
considered in the formulation of a final rule.

ADDRESSES: Interested parties should submit written comments to: 
General Services Administration, FAR Secretariat (MVR), 18th & F 
Streets, NW., Room 4035, Attn: Ms. Beverly Fayson, Washington, DC 
20405.
    Please cite FAC 90-40, FAR case 95-309, in all correspondence 
related to this case.

FOR FURTHER INFORMATION CONTACT: Mr. Jack O'Neill at (202) 501-3856 in 
reference to this FAR case. For general information, contact the FAR 
Secretariat, Room 4037, GS Building, Washington, DC 20405 (202) 501-
4755. Please cite FAC 90-40, FAR case 95-309.

SUPPLEMENTARY INFORMATION:

A. Background

    This interim rule revises the agency procurement protest procedures 
at FAR 33.103 to implement Executive Order 12979 of October 25, 1995, 
Agency Procurement Protests (60 FR 55171, October 27, 1995).

B. Regulatory Flexibility Act

    The interim rule may have a significant economic impact on a 
substantial number of small entities within the meaning of the 
Regulatory Flexibility Act, 5 U.S.C. 601 et seq., because it provides 
for a simpler, less expensive means of resolving agency protests. An 
Initial Regulatory Flexibility Analysis (IRFA) has been prepared and 
will be provided to the Chief Counsel for Advocacy of the Small 
Business Administration. A copy of the IRFA may be obtained from the 
FAR Secretariat. Comments are invited. Comments from small entities 
concerning the affected FAR subpart will be considered in accordance 
with 5 U.S.C. 610. Such comments must be submitted separately and cite 
5 U.S.C. 601, et seq. (FAC 90-40, FAR Case 95-309), in correspondence.

C. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because the changes to 
the FAR do not impose recordkeeping or information collection 
requirements, or collections of information from offerors, contractors, 
or members of the public which require the approval of the Office of 
Management and Budget under 44 U.S.C. 3501, et seq.

D. Determination to Issue an Interim Rule

    A determination has been made under the authority of the Secretary 
of Defense (DOD), the Administrator of General Services (GSA), and the 
Administrator of the National Aeronautics and Space Administration 
(NASA) that compelling reasons exist to promulgate this interim rule 
without prior opportunity for public comment. This action is necessary 
in order to implement Executive Order 12979, Agency Procurement 
Protests, which required incorporation of its policies into the Federal 
Acquisition Regulation by April 22, 1996. However, pursuant to Public 
Law 98-577 and FAR 1.501, public comments received in response to this 
interim rule will be considered in the formation of the final rule.

List of Subjects in 48 CFR Part 33

    Government procurement.

    Dated: July 16, 1996.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.

    Therefore, 48 CFR part 33 is amended as set forth below:

PART 33--PROTESTS, DISPUTES AND APPEALS

    1. The authority citation for 48 CFR part 33 continues to read as 
follows:

    Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42 
U.S.C. 2473(c).

    2. Section 33.103 is revised to read as follows:


33.103  Protests to the agency.

    (a) Reference. Executive Order 12979, Agency Procurement Protests, 
establishes policy on agency procurement protests.
    (b) Prior to submission of an agency protest, all parties shall use 
their best efforts to resolve concerns raised by an interested party at 
the contracting officer level through open and frank discussions.
    (c) The agency should provide for inexpensive, informal, 
procedurally simple, and expeditious resolution of protests. Where 
appropriate and permitted by law, the use of alternative dispute 
resolution techniques, third party neutrals, and another agency's 
personnel are acceptable protest resolution methods.
    (d) The following procedures are established to resolve agency 
protests effectively, to build confidence in the Government's 
acquisition system, and to reduce protests outside of the agency:
    (1) Protests shall be concise and logically presented to facilitate 
review by the agency. Failure to substantially comply with any of the 
requirements of paragraph (d)(2) of this section may be grounds for 
dismissal of the protest.
    (2) Protests shall include the following information:
    (i) Name, address, fax number, and telephone number of the 
protester.
    (ii) Solicitation or contract number.
    (iii) Detailed statement of the legal and factual grounds for the 
protest, to include a description of resulting prejudice to the 
protester.
    (iv) Copies of relevant documents.
    (v) Request for a ruling by the agency.
    (vi) Statement as to the form of relief requested.
    (vii) All information establishing that the protester is an 
interested party for the purpose of filing a protest.
    (viii) All information establishing the timeliness of the protest.
    (3) All protests filed directly with the agency will be addressed 
to the

[[Page 39220]]

contracting officer or other official designated to receive protests.
    (4) Interested parties may request an independent review at a level 
above the contracting officer, of any decision by the contracting 
officer that is alleged to have violated a statute or regulation and 
thereby caused prejudice to the offeror. This independent review need 
not be established within the contracting officer's supervisory chain.
    (e) Protests based on alleged apparent improprieties in a 
solicitation shall be filed before bid opening or the closing date for 
receipt of proposals. In all other cases, protests shall be filed no 
later than 14 days after the basis of protest is known or should have 
been known, whichever is earlier. The agency, for good cause shown, or 
where it determines that a protest raises issues significant to the 
agency's acquisition system, may consider the merits of any protest 
which is not timely filed.
    (f) Action upon receipt of protest. (1) Upon receipt of a protest 
before award, a contract may not be awarded, pending resolution of the 
protest, unless contract award is justified, in writing, for urgent and 
compelling reasons or is determined, in writing, to be in the best 
interest of the Government. Such justification or determination shall 
be approved at a level above the contracting officer, or by another 
official pursuant to agency procedures.
    (2) If award is withheld pending resolution of the protest, the 
contracting officer will inform the offerors whose offers might become 
eligible for award of the contract. If appropriate, the offerors should 
be requested, before expiration of the time for acceptance of their 
offers, to extend the time for acceptance to avoid the need for 
resolicitation. In the event of failure to obtain such extension of 
offers, consideration should be given to proceeding with award pursuant 
to paragraph (f)(1) of this section.
    (3) Upon receipt of a protest within 10 days after contract award 
or within 5 days after a debriefing date offered to the protester under 
a timely debriefing request in accordance with 15.1004, whichever is 
later, the contracting officer shall immediately suspend performance, 
pending resolution of the protest within the agency, including any 
review by an independent higher level official, unless continued 
performance is justified, in writing, for urgent and compelling reasons 
or is determined, in writing, to be in the best interest of the 
Government. Such justification or determination shall be approved at a 
level above the contracting officer, or by another official pursuant to 
agency procedures.
    (g) Agencies shall make their best efforts to resolve agency 
protests within 35 days after the protest is filed.
    (h) Agency protest decisions shall be well-reasoned, and shall 
provide sufficient factual detail explaining the agency position. A 
copy of the written protest decision shall be furnished to the 
protester. A method that provides evidence of receipt should be used.

[FR Doc. 96-18510 Filed 7-25-96; 8:45 am]
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