[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

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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]
BILLING CODE 3510-EC-P