[Federal Register Volume 62, Number 1 (Thursday, January 2, 1997)]
[Rules and Regulations]
[Pages 270-271]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-33216]


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DEPARTMENT OF DEFENSE
48 CFR Part 33

[FAC 90-45; FAR Case 95-309; Item XII]
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: Final rule.

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SUMMARY: The Civilian Agency Acquisition Council and the Defense 
Acquisition Regulations Council have agreed on a final rule to amend 
the Federal Acquisition Regulation (FAR) to provide for informal, 
procedurally simple, and inexpensive resolution of protests. This final 
rule implements Executive Order 12979, Agency Procurement Protests. 
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.

EFFECTIVE DATE: March 3, 1997.

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 4035, GS Building, Washington, DC 20405, (202) 501-
4755. Please cite FAC 90-45, FAR case 95-309.

SUPPLEMENTARY INFORMATION:

A. Background

    This final 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). An interim 
rule was published in the Federal Register at 61 FR 39219, July 26, 
1996. Six sources submitted public comments. All comments, including 
comments from GAO, were considered in developing the final rule.

B. Regulatory Flexibility Act

    A Final Regulatory Flexibility Analysis (FRFA) has been performed. 
A copy of the FRFA may be obtained from the FAR Secretariat. The 
analysis is summarized as follows:

    This rule implements Executive Order 12979, Agency Procurement 
Protests, which requires the heads of the executive departments and 
agencies engaged in the procurement of supplies and services to 
prescribe administrative procedures for the resolution of 
procurement protests as an alternative to protests in a forum 
outside the procuring agencies. There were no public comments 
received in response to the Initial Regulatory Flexibility Analysis. 
Several changes were made as a result of public comments in response 
to the interim rule. The time to file a protest was reduced from 14 
to 10 days after the basis of protest is known, or should be known, 
to conform with revisions to General Accounting Office protest 
procedures. The rule was revised to clarify that agencies may 
designate an official, other than the contracting officer, to 
receive protests. Agencies may also designate whether a review of a 
protest by an official other than the contracting officer is instead 
of, or in addition to, review of the protest by the contracting 
officer. The rule was revised to permit agencies to exchange 
information with a protester while considering the protest.
    The rule will apply to all actual or potential bidders or 
offerors, large and small, whose direct economic interests would be 
affected by the award or failure to award a Government contract. The 
number of small entities to which the rule will apply is estimated 
to be between 35,000 and 45,000. This rule does not impose any 
reporting, recordkeeping, or other compliance requirements.
    This rule is expected to have a beneficial impact on small 
entities by prescribing informal, procedurally simple, and 
inexpensive means to resolve protests. The rule encourages the use 
of alternative dispute resolution techniques, third party neutrals, 
and another agency's personnel as alternative protest resolution 
methods.

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.

List of Subjects in 48 CFR Part 33

    Government procurement.

    Dated: December 24, 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 amended--
    a. in paragraph (c) by removing ``and permitted by law'';
    b. by revising paragraphs (d)(2)(i) and (d)(4);
    c. in paragraph (e) by revising ``14 days'' to read ``10 days'';

[[Page 271]]

    d. in the first sentence of paragraphs (f)(1) and (f)(2) by 
inserting the word ``agency'' after the word ``pending'';
    e. by adding paragraph (f)(4); and
    f. by revising paragraphs (g) and (h) to read as follows:


33.103  Protests to the agency.

* * * * *
    (d) * * *
    (2) Protests shall include the following information:
    (i) Name, address, and fax and telephone numbers of the protester.
* * * * *
    (4) In accordance with agency procedures, interested parties may 
request an independent review of their protest at a level above the 
contracting officer; solicitations should advise potential bidders and 
offerors that this review is available. Agency procedures and/or 
solicitations shall notify potential bidders and offerors whether this 
independent review is available as an alternative to consideration by 
the contracting officer of a protest or is available as an appeal of a 
contracting officer decision on a protest. Agencies shall designate the 
official(s) who are to conduct this independent review, but the 
official(s) need not be within the contracting officer's supervisory 
chain. When practicable, officials designated to conduct the 
independent review should not have had previous personal involvement in 
the procurement. If there is an agency appellate review of the 
contracting officer's decision on the protest, it will not extend GAO's 
timeliness requirements. Therefore, any subsequent protest to the GAO 
must be filed within 10 days of knowledge of initial adverse agency 
action (4 CFR 21.2(a)(3)).
* * * * *
    (f) * * *
    (4) Pursuing an agency protest does not extend the time for 
obtaining a stay at GAO. Agencies may include, as part of the agency 
protest process, a voluntary suspension period when agencies protests 
are denied and the protester subsequently files at GAO.
    (g) Agencies shall make their best efforts to resolve agency 
protests within 35 days after the protest is filed. To the extent 
permitted by law and regulation, the parties may exchange relevant 
information.
    (h) Agency protest decisions shall be well-reasoned, and explain 
the agency position. The protest decision shall be provided to the 
protester using a method that provides evidence of receipt.

[FR Doc. 96-33216 Filed 12-31-96; 8:45 am]
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