[Federal Register Volume 64, Number 65 (Tuesday, April 6, 1999)]
[Rules and Regulations]
[Pages 16651-16654]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-8282]
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DEPARTMENT OF COMMERCE
48 CFR Part 1333
[Docket No. 990127035-9035-01]
RIN 0605-AA15
Commerce Acquisition Regulation; Agency Protest Procedures
AGENCY: Department of Commerce.
ACTION: Final rule.
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SUMMARY: The Department of Commerce amends the Commerce Acquisition
[[Page 16652]]
Regulation (CAR) to implement the requirements of Executive Order 12979
and the Federal Acquisition Regulation (FAR) Part 33, Section 103, to
include ``Agency Protest Procedures-Level Above the Contracting
Officer.'' The Department of Commerce has an urgent need to publish its
final rule stating the policy governing protests at the level above the
Contracting Officer. These rules are currently being used by all
Department of Commerce contracting activities. Accordingly, they
provide uniform policy and procedures governing the filing and
disposition of all pre award and post award agency protests of
contracting actions at the level above the Contracting Officer. It
should be emphasized, however, that the current rules and procedures
pertaining to ordinary agency protests filed directly with the
Contracting Officer remain in effect. These provisions include
establishment of the protest decision authority for all Agency protests
filed at the level above the Contracting Officer, the election of
forum, the procedures for filing such protests, the minimal filing
contents for a valid protest of this type, procedures for the protest
disposition, the effects of protest filing on contract awards, and
potential remedies available for resolution of these protests. These
rules have been designed to create an additional avenue for resolving
third party grievances in connection with the acquisition process and
to avoid resolving these types of disputes through formal judicial
processes.
EFFECTIVE DATE: This final rule is effective May 6, 1999.
FOR FURTHER INFORMATION CONTACT: Ms. Lisa Jandovitz, Director, Policy,
Office of Acquisition Management, 202-482-0202.
SUPPLEMENTARY INFORMATION: This rule implements the requirements of
Executive Order No. 12979 and Federal Acquisition Regulation (FAR
33.103). On October 25, 1995, President Clinton signed Executive Order
No. 12979 which directs heads of executive agencies to develop
administrative procedures for resolving protests to awards of
procurement contracts within their agencies at a level above the
Contracting Officer. Authority to administer procurement-related
directives has been delegated within the Department of Commerce through
the Chief Financial Officer and Assistant Secretary for Administration
to the Director for Acquisition Management (Procurement Executive). The
Department's goal is to encourage protesters to resolve their protests
at the agency level, help build confidence in the Government's
acquisition system, and reduce the number or frequency of protests to
the General Accounting Office and other external fora. 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. If
concerns cannot be resolved, protesters may use these procedures when a
resolution is requested from the agency at a level above the
Contracting Officer. An agency protest is one that may be filed with
either the Contracting Officer or the Protest Decision Authority but
not both. When a protester decides to file a protest at the agency
level with ``the Protest Decision Authority'', as that term is defined
in these regulations, the guidelines set forth in these established
agency level protest procedures above the Contracting Officer apply.
These procedures are in addition to the existing protest procedures
contained in FAR Part 33.102.
Under these regulations, ``day'' is considered to be a calendar
day. In computing a period of time for the purpose of these procedures,
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 Washington, DC offices of the
Department of Commerce are closed for all or part of the last day, the
period extends to the next day on which the Department is open for
business.
Protesters using these procedures may protest to the ``Protest
Decision Authority'' who will make the final decision for the
Department. Protests shall be addressed to: (Name, title of the
individual, and address of the individual listed in the solicitation).
Regulatory Flexibility Act
A Regulatory Flexibility Analysis is not required for this rule
because it is being issued without prior notice and opportunity for
comment. This rule pertains to a matter relating to public property,
loans, grants, benefits, or contracts, 5 U.S.C. 553(a)(2), and does not
constitute a significant revision to the CAR (48 CFR 1.501-3(a)).
Paperwork Reduction Act
This final rule contains information collection requirements which
have been cleared by the Office of Management and Budget pursuant to
the Paperwork Reduction Act (OMB Control No. 9000-0035).
Notwithstanding any other provision of law, no person is required to
respond to, nor shall any person be subject to a penalty for failure to
comply with, a collection of information subject to the requirements of
the Paperwork Reduction Act unless that collection of information
displays a currently valid OMB control number.
Executive Order 12866
It has been determined that this rule is not significant for
purposes of Executive Order 12866.
List of Subjects in 48 CFR Part 1333
Government procurement.
For the purposes set out in the preamble, 48 CFR Part 1333 is
amended as follows:
1. The authority for Part 1333 continues to read as follows:
Authority: Federal Property and Administrative Services Act of
1949, as amended (40 U.S.C. 486(c)), as delegated by the Secretary
of Commerce in Department Organization Order 10-5 and Department
Administrative Order 108-2.
2. Amend Subpart 1333.1 by adding 1333.101 to read as follows:
1333.101 Definitions.
Agency protest, as used in this subpart, is one that may be filed
with either the Contracting Officer or the Protest Decision Authority
but not both.
Assistant General Counsel (AGC), as used in this subpart, means the
Assistant General Counsel of the Department of Commerce for Finance and
Litigation.
Protest Decision Authority, as used in this subpart, is the agency
official above the level of the Contracting Officer who has been
designated by the Procurement Executive to handle and issue the formal
agency decision resolving the protest.
3. Add 1333.102 to read as follows:
1333.102 General.
(a) Protests must be received within ten work days after the basis
for protest is known or should have been known unless good cause is
shown to extend the time limit. However, protests based upon alleged
improprieties in any type of solicitation which are apparent prior to
bid opening or the closing time for receipt of initial proposals shall
be filed prior to bid opening or the closing time for receipt of
initial proposals. Unless the time limit for receiving the protest is
extended for good cause, a protest to the contracting activity which is
received after the time limit will not be considered. When a timely
protest is filed only with the contracting activity, the contracting
officer shall take prompt action toward resolution after consulting
with the AGC, and notify the protestor in writing of the action taken.
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(b) When a protest is filed only with the contracting activity
before award, an award shall not be made until the matter is resolved,
unless the head of the contracting office makes the determination
prescribed in FAR 33.103(f).
(c) When a protest is filed only with the contracting activity
after award, the Contracting Officer need not notify the contractor, if
the protest can be promptly resolved. If it appears likely that a
protest will be filed with the General Accounting Office (GAO), or
other administrative forum, the Contracting Officer should promptly
notify the contractor in writing and consider suspending contract
performance.
4. Revise 1333.103 to read as follows:
1333.103 Protests to the agency.
(a) When a protester decides to file a protest at the agency level
with the Protest Decision Authority, the guidelines set forth in these
established agency level protest procedures above the Contracting
Officer apply. These procedures are in addition to the existing protest
procedures contained in the FAR Part 33.102 and 1333.102 of this
subpart.
(1) For purposes of this subpart, a day is a calendar day. In
computing a period of time for the purpose of these procedures, 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 Washington, DC offices of the Department
of Commerce are closed for all or part of the last day, the period
extends to the next day on which the Department is open.
(2) Protesters using these procedures may protest to the Protest
Decision Authority who will make the final decision for the Department.
Protests shall be addressed to: (Name, title of the person and address
to be inserted by the Contracting Officer in the solicitation). The
outside of the envelope or beginning of the FAX transmission must be
marked ``Agency-level Protest''. The protester shall also provide a
copy of the protest within 1 day to the responsible Contracting Officer
and a copy to: Contract Law Division, Office of the Assistant General
Counsel for Finance and Litigation, Department of Commerce, Room H5882,
14th Street and Constitution Avenue, NW, Washington, DC 20230, (FAX
Number 202-482-5858).
(3) While a protest is pending at the agency level with the Protest
Decision Authority, the protester agrees not to protest to the GAO or
any other external fora. If the protester has already filed with the
GAO or other external fora, the procedures described here may not be
used.
(i) Protests based upon alleged improprieties in a solicitation
which are apparent prior to bid opening or time set for receipt of
proposals shall be filed prior to bid opening or the time set for
receipt of proposals. If the contract has been awarded, protests must
be filed within 10 days after contract award or 5 days after the date
the protester was given the opportunity to be debriefed, whichever date
is later. In cases other than those covered in the preceding two
sentences, protests shall be filed not later than 14 days after the
basis of the protest is known or should have been known, whichever is
earlier.
(ii) To be filed on a given day, protests must be received by 4:30
PM current local time. Any protests received after that time will be
considered to be filed on the next day. Incomplete submissions will not
be considered filed until all information is provided.
(iii) To be complete, protests must contain the following
information:
(A) The protester's name, address, telephone number, and fax
number.
(B) The solicitation or contract number, name of contracting office
and the Contracting Officer.
(C) A detailed statement of all factual and legal grounds for
protests, and an explanation of how the protester was prejudiced.
(D) Copies of relevant documents supporting protester's statement.
(E) A request for ruling by the agency.
(F) Statement as to form of relief requested.
(G) All information establishing that the protester is an
interested party for the purpose of filing a protest.
(H) All information establishing the timeliness of the protest.
(iv) All protests must be signed by an authorized representative of
the protestor.
(b) Within 14 days after the protest is filed, the Contracting
Officer will prepare an administrative report that responds to the
issues raised by the protester and addresses any other issues, which,
even if not raised by the protester, that may have been identified by
agency officials as being relevant to the fairness of the procurement
process. The Contracting Officer shall forward this administrative
report to the Contract Law Division, Office of the Assistant General
Counsel for Finance and Litigation.
(1) For good cause shown, the Protest Decision Authority may grant
an extension of time for filing the administrative report and for
issuing the written decision. When an extension is granted, the Protest
Decision Authority will notify the protester and all interested parties
within 1 day of the decision to grant the extension.
(2) Unless an extension is granted, the Protest Decision Authority
will issue a decision within 35 days of the protest. The protest
decision authority's final decision will be binding on the Department
of Commerce and not subject to further appeals.
(3) The Protest Decision Authority shall send a written ruling and
a summary of the reasons supporting the ruling to the protester, by
``Certified Mail, Return Receipt Requested,'' and shall forward
information copies to the applicable contracting office and the
Procurement Executive, Office of Acquisition Management.
(c) Effect of protest on award and performance.
(1) When a protest is filed prior to award, a contract may not be
awarded unless authorized by the Head of the Contracting Activity (HCA)
based on a written finding that:
(i) The supplies or services are urgently required.
(ii) Delivery or performance would be unduly delayed by failure to
make the award promptly.
(iii) A prompt award will be in the best interest of the
Government.
(2) When a protest is filed within 10 days after contract award, or
5 days after a debriefing date was offered to the protester under a
timely debriefing request in accordance with FAR 15.1004, whichever is
later, the Contracting Officer shall immediately suspend performance
pending the resolution of the protest within the agency, including any
review by an independent higher official, unless continued performance
is justified. The HCA may authorize continued contract performance,
notwithstanding the protest, based on a written finding that:
(i) Contract performance would be in the best interest of the
United States; or
(ii) Urgent and compelling circumstances that significantly affect
the interests of the United States will not permit waiting for a
decision.
(d) The Protest Decision Authority may grant one or more of the
following remedies:
(1) Terminate the contract.
(2) Re-compete the requirement.
(3) Issue a new solicitation.
(4) Refrain from exercising options under the contract.
(5) Award a contract consistent with statutes and regulations.
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(6) Amend the solicitation provisions which gave rise to the
protest and continue with the procurement.
(7) Such other remedies as the decision-maker may determine are
necessary to correct a defect.
Robert A. Welch,
Procurement Executive.
[FR Doc. 99-8282 Filed 4-5-99; 8:45 am]
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