[Federal Register Volume 67, Number 37 (Monday, February 25, 2002)]
[Proposed Rules]
[Page 8485]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-4337]

Proposed Rules
                                                Federal Register

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.


Federal Register / Vol. 67, No. 37 / Monday, February 25, 2002 / 
Proposed Rules

[[Page 8485]]


4 CFR Part 21

General Accounting Office, Administrative Practice and Procedure, 
Bid Protest Regulations, Government Contracts

AGENCY: General Accounting Office.

ACTION: Advance notice of proposed rulemaking.


SUMMARY: The General Accounting Office (GAO) is reviewing, and will be 
revising, its Bid Protest Regulations, promulgated in accordance with 
the Competition in Contracting Act of 1984. GAO last revised Part 21 in 
1996, and believes that developments since that time warrant updating 
the Regulations to reflect current practice. In connection with this 
effort, GAO also is soliciting comments on how its Regulations should 
be revised to improve the overall efficiency and effectiveness of the 
bid protest process at GAO.

DATES: Comments must be submitted on or before April 1, 2002.

ADDRESSES: Comments should be addressed to: John M. Melody, Assistant 
General Counsel, General Accounting Office, 441 G Street, NW., 
Washington, DC 20548.

FOR FURTHER INFORMATION CONTACT: John M. Melody (Assistant General 
Counsel) or David A. Ashen (Deputy Assistant General Counsel), 202-512-

SUPPLEMENTARY INFORMATION: GAO is considering revising its Bid Protest 
Regulations, in accordance with the Competition in Contracting Act of 
1984, 31 U.S.C. 3555(a). Revisions are being considered in several 
areas to take into account legal developments and changes in practice 
that have occurred since the 1996 revision. Among the changes being 
considered are the following:
    Section 21.0(g) currently states that a document may be filed by 
hand delivery, mail, or commercial carrier, and then goes on to state 
that parties wishing to file by facsimile transmission or other 
electronic means must ensure that the necessary equipment at GAO's 
Procurement Law Group is operational. GAO is not aware that there has 
been any significant confusion regarding acceptable means of filing 
protests and other documents. However, in light of our experience that 
documents commonly are filed by facsimile transmission, and our recent 
initiative to permit electronic filing, we believe this paragraph 
should clarify that filing by facsimile transmission is permitted (and, 
in fact, is commonplace), and that electronic filing (E-mail) of 
protest documents is permitted under certain circumstances.
    Alternate dispute resolution (ADR) is utilized regularly by GAO as 
a means of resolving bid protests in an efficient, expeditious manner, 
but there is no language in the Bid Protest Regulations identifying it 
as such. Since a substantial number of cases have been found to be 
suitable for resolution using ADR, and it is anticipated that this will 
remain the case, GAO is considering adding language to reflect this 
    Under the timeliness provisions of Sec. 21.2(a)(2), where a 
debriefing is requested and required, any protest basis that is known 
or should have been known, either before or as a result of the 
debriefing, shall not be filed prior to the debriefing date offered to 
the protester. This rule has had the unintended result, in a very few 
cases, of leading protesters to delay--until after a debriefing--
protesting a matter that arose during the procurement (for example, an 
alleged Procurement Integrity Act violation), prior to award. As it has 
long been GAO's view that it is beneficial to the procurement system to 
have alleged procurement deficiencies resolved, where possible, at the 
time the alleged deficiency arises, GAO is considering revising 
Sec. 21.2(a)(2) to provide guidance in this area.
    Section 21.5(c) provides that GAO will consider affirmative 
determinations of responsibility only under very limited circumstances, 
reflecting GAO's long held view that such determinations are so 
subjective that they do not lend themselves to reasoned review. In 
January 2001, the Court of Appeals for the Federal Circuit, in its 
decision Impresa Construzioni Geom. Domenico Garufi v. United States, 
238 F.3d 1324 (Fed. Cir. 2001) held that affirmative determinations of 
responsibility by contracting officers are reviewable by the Court of 
Federal Claims under the ``arbitrary and capricious'' standard 
applicable under the Administrative Procedures Act. In light of the 
Federal Circuit's decision, GAO is considering whether to revise its 
Regulations in this area.
    GAO welcomes comments on these considerations, as well as 
suggestions for changes to other areas of the Regulations that may 
enhance the efficiency and overall effectiveness of the bid protest 
    Comments may be submitted by hand delivery or mail to the address 
in the address line, by e-mail at BidProtestRegs.gao.gov, or by 
facsimile at 202-512-9749.

Anthony H. Gamboa,
General Counsel.
[FR Doc. 02-4337 Filed 2-22-02; 8:45 am]