[Federal Register Volume 62, Number 236 (Tuesday, December 9, 1997)]
[Rules and Regulations]
[Pages 64933-64934]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-31823]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Part 33

[FAC 97-03; FAR Case 97-009; Item X]
RIN 9000-AH81


Federal Acquisition Regulation; Protests to GAO

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 amending 
the Federal Acquisition Regulation (FAR) to conform with revisions to 
the General Accounting Office (GAO) Bid Protest Regulations. 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: February 9, 1998.

FOR FURTHER INFORMATION CONTACT: The FAR Secretariat, Room 4035, GS 
Building, Washington, DC 20405, (202) 501-4755, for information 
pertaining to status or publication schedules. For clarification of 
content, contact Mr. Jack O'Neill, Procurement Analyst, at (202) 501-
3856. Please cite FAC 97-03, FAR case 97-009.

SUPPLEMENTARY INFORMATION:

A. Background

    The GAO published a final rule amending its Bid Protest Regulations 
in the Federal Register on July 26, 1996 (61 FR 39039). Several 
conforming amendments to FAR Part 33 are necessary to reflect the 
current GAO Bid Protest Regulations. The definition of ``day'' in FAR 
33.101 is amended to exclude Saturdays, Sundays, and Federal holidays 
from being counted if such day is the last day of the period after the 
act, event, or default. FAR 33.104 is amended to require agencies to 
include a best estimate of the contract value in an agency report of a 
protest; and to require agencies to provide to all parties, at least 5 
days prior to the filing of a report, a list of documents the agency 
intends to release or withhold, and reasons for proposed withholding. 
The time within which agencies are required to provide additional 
documents requested by a protester is reduced from 5 to 2 days. The 
time within which protesters or other interested parties are required 
to furnish comments on an agency report is reduced from 14 to 10 days, 
or from 7 to 5 days if an express option is used; or, if a hearing is 
held, from 7 to 5 days. Language is added to require a protester to 
file its claim for costs with the contracting agency within 60 days 
after receipt of GAO's recommendation that the agency pay the protester 
its costs.

B. Regulatory Flexibility Act

    The final rule does not constitute a significant FAR revision 
within the meaning of FAR 1.501 and Public Law 98-577, and publication 
for public comments is not required. However, 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 should cite 5 U.S.C. 601, et seq. (FAC 97-03, FAR case 
97-009), 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.

List of Subjects in 48 CFR Part 33

    Government procurement.

    Dated: December 1, 1997.
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).


33.101  [Amended]

    2. Section 33.101 is amended in paragraph (b)(1) under the 
definition of ``Day'' by removing the word ``legal'' and inserting 
``Federal'' in its place; and by removing paragraph (c).
    3. Section 33.104 is amended by--
    a. Redesignating (a)(3)(iii) as (a)(3)(iv), and adding a new 
(a)(3)(iii);
    b. Revising newly designated (a)(3)(iv)(B); removing (a)(3)(iv)(C); 
redesignating (a)(3)(iv)(D) as (a)(3)(iv)(C);
    c. Replacing ``5'' with ``2'' in paragraphs (a)(4)(ii)(A) and 
(a)(4)(ii)(B);
    d. Replacing ``14'' with ``10'' and ``7'' with ``5'' each time it 
appears in paragraph (a)(6);
    e. Adding ``the agency'' before the word ``report'' in the third 
sentence of paragraph (e);
    f. Revising paragraph (h) to read as follows:


33.104  Protests to GAO.

* * * * *
    (a) * * *
    (3) * * *
    (iii) At least 5 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 the GAO a list of those 
documents, or portions of documents, that the agency has released to 
the protester or intends to produce in its report, and those documents 
that the agency intends to withhold from the protester and the reasons 
for the proposed withholding. Any objection to the scope of the 
agency's proposed disclosure or nondisclosure of the documents must be 
filed with the GAO and the other parties within 2 days after receipt of 
this list.
    (iv) * * *
    (A) * * *
    (B) The contracting officer's signed statement of relevant facts, 
including a best estimate of the contract value, and a memorandum of 
law. The contracting officer's statement shall set forth findings, 
actions, and recommendations, and any additional evidence or 
information not provided in the protest

[[Page 64934]]

file that may be necessary to determine the merits of the protest; and
* * * * *
    (h) Award of costs. (1) If the GAO determines that a solicitation 
for a contract, a proposed award, or an award of a contract does not 
comply with a statute or regulation, the GAO may recommend that the 
agency pay to an appropriate protester the cost, exclusive of profit, 
of filing and pursuing the protest, including reasonable attorney, 
consultant, and expert witness fees, and bid and proposal preparation 
costs. The agency shall use funds available for the procurement to pay 
the costs awarded.
    (2) The protester shall file its claim for costs with the 
contracting agency within 60 days after receipt of the 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.
    (3) The agency shall attempt to reach an agreement on the amount of 
costs to be paid. If the agency and the protester are unable to agree 
on the amount to be paid, the GAO may, upon request of the protester, 
recommend to the agency the amount of costs that the agency should pay.
    (4) Within 60 days after the GAO recommends the amount of costs the 
agency should pay the protester, the agency shall notify the GAO of the 
action taken by the agency in response to the recommendation.
    (5) No agency shall pay a party, other than a small business 
concern within the meaning of section 3(a) of the Small Business Act 
(see 19.001, ``Small business concern''), costs under paragraph (h)(2) 
of this section
    (i) For consultant and expert witness fees that exceed the highest 
rate of compensation for expert witnesses paid by the Government 
pursuant to 5 U.S.C. 3109 and 5 CFR 304.105; or
    (ii) For attorney's fees that exceed $150 per hour, unless the 
agency determines, based on the recommendation of the Comptroller 
General on a case-by-case basis, that an increase in the cost of living 
or a special factor, such as the limited availability of qualified 
attorneys for the proceedings involved, justifies a higher fee. The cap 
placed on attorneys' fees for businesses, other than small businesses, 
constitutes a benchmark as to a ``reasonable'' level for attorney's 
fees for small businesses.
    (6) Before paying a recommended award of costs, agency personnel 
should consult legal counsel. Section 33.104(h) applies to all 
recommended awards of costs that have not yet been paid.
    (7) Any costs the contractor receives under this section shall not 
be the subject of subsequent proposals, billings, or claims against the 
Government, and those exclusions should be reflected in the cost 
agreement.
    (8) If the Government pays costs, as provided in paragraph (h)(1) 
of this section, where a postaward protest is sustained as the result 
of an awardee's intentional or negligent misstatement, 
misrepresentation, or miscertification, the Government may require the 
awardee to reimburse the Government the amount of such costs. In 
addition to any other remedy available, and pursuant to the 
requirements of subpart 32.6, the Government may collect this debt by 
offsetting the amount against any payment due the awardee under any 
contract between the awardee and the Government.

[FR Doc. 97-31823 Filed 12-8-97; 8:45 am]
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