[Federal Register Volume 75, Number 7 (Tuesday, January 12, 2010)]
[Rules and Regulations]
[Pages 1541-1543]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-385]


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POSTAL SERVICE

39 CFR Part 601


Purchasing of Property and Services

AGENCY: Postal ServiceTM.

ACTION: Final rule.

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SUMMARY: The Postal Service is revising its regulations governing the 
supplier disagreement resolution (SDR) process to clarify and explain 
the purposes of that process, and to remove extraneous and duplicative 
language.

DATES: Effective Date: January 12, 2010.

FOR FURTHER INFORMATION CONTACT: Paul D. McGinn, 202-268-4368, or 
Edward B. Halstead, 202 268-6221.

SUPPLEMENTARY INFORMATION: The Postal Service is revising the 
regulations in 39 CFR 601.107 and 601.108 that govern the supplier 
disagreement resolution (SDR) process in order to clarify certain SDR 
procedures. These changes are explained in more detail below.

Explanation of Changes

Section 601.107: Initial Disagreement Resolution

    Paragraph (a) has been revised to state that the Supplier 
Disagreement Resolution Official (SDR Official) is a contracting 
officer designated by the Postal Service to perform the functions 
established under Sec.  601.108.
    Paragraph (b) has been revised to clarify the timelines for filing 
initial disagreements concerning solicitations.
    Paragraph (c) is revised to inform parties that the alternative 
dispute resolution (ADR) process may be used to resolve disagreements 
and that if an agreement cannot be reached under ADR, the supplier has 
10 days to lodge its disagreement with the SDR Official.

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Section 601.108: SDR Official Disagreement Resolution

    Paragraph (a) has been revised to remove language that was 
extraneous or duplicative of statements made in other paragraphs.
    Paragraph (b) contains editorial changes and further explains the 
purposes of the disagreement resolution process.
    Paragraph (c) clarifies the acceptable modes for submitting a 
disagreement under Sec.  601.107 or contest of decision under Sec.  
601.105 and updates the dedicated fax number.
    Paragraph (d) clarifies that this paragraph covers both 
disagreements under Sec.  601.107 and contests of decisions under Sec.  
601.105. Paragraph (d)(3) has been revised for clarity.
    Paragraph (e) is supplemented to provide examples of remedies that 
the SDR Official is authorized to grant.
    Paragraph (g) explains when a challenged award becomes final, a 
status that varies depending on how the SDR Official resolves the 
disagreement. The grounds upon which appeals may be taken to Federal 
court, previously addressed in paragraph (g), are now addressed in a 
new paragraph (h).
    Paragraph (h) clarifies the grounds upon which the Postal Service's 
final contract award, as described in paragraph (g), may be appealed. 
Paragraph (h) further clarifies that the party lodging the disagreement 
may seek review of the Postal Service's final contract award only after 
the mandatory administrative remedies provided under Sec.  601.107 and 
Sec.  601.108 have been exhausted.
    Paragraph (i) is identical to the old paragraph (h), except that it 
now clarifies that the resolution timeframe applies not only to 
disagreements under Sec.  601.107, but also to contests of decisions 
under Sec.  601.105.

List of Subjects in 39 CFR Part 601

    Government procurement, Postal Service.

0
Accordingly, 39 CFR Part 601 is amended as follows:

PART 601--[AMENDED]

0
1. The authority citation for 39 CFR Part 601 continues to read as 
follows:

    Authority: 39 U.S.C. 401, 404, 410, 411, 2008, 5001-5605.

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2. Revise Sec. Sec.  601.107 and 601.108 to read as follows:


Sec.  601.107  Initial disagreement resolution.

    (a) Definitions.
    (1) Days. Calendar days; however, any time period will run until a 
day that is not a Saturday, Sunday, or legal holiday.
    (2) Disagreements. All disputes, protests, claims, disagreements, 
or demands of whatsoever nature arising in connection with the 
acquisition of property and services within the scope of Sec.  601.103 
of this chapter, except those:
    (i) That arise pursuant to a contract under the Contract Disputes 
Act under Sec.  601.109;
    (ii) That concern debarment, suspension, or ineligibility under 
Sec.  601.113; or
    (iii) That arise out of the nonrenewal of transportation contracts 
containing other provisions for the review of such decisions.
    (3) Interested parties. Actual or prospective offerors whose direct 
economic interests would be affected by the award of, or failure to 
award, the contract.
    (4) Lodge. A disagreement is lodged on the date it is received by 
the contracting officer or the Supplier Disagreement Resolution 
Official, as appropriate.
    (5) SDR Official. The Supplier Disagreement Resolution Official, a 
contracting officer designated by the Postal Service to perform the 
functions established under Sec.  601.108.
    (b) Policy. It is the policy of the Postal Service and in the 
interest of its suppliers to resolve disagreements by mutual agreement 
between the supplier and the responsible contracting officer. All 
disagreements must be lodged with the responsible contracting office in 
writing via facsimile, e-mail, hand delivery, or U.S. Mail. For 
disagreements that concern the award of a contract, the disagreement 
shall be lodged within 10 days of the date the supplier received 
notification of award or 10 days from the date the supplier received a 
debriefing, whichever is later. For disagreements that concern alleged 
improprieties in a solicitation, the contracting officer must receive 
the disagreement before the time set for the receipt of proposals, 
unless the disagreement concerns an alleged impropriety that does not 
exist in the initial solicitation but which is subsequently 
incorporated into the solicitation, in which event the contracting 
officer must receive the disagreement no later than the next closing 
time for the receipt of proposals following the incorporation. The 
resolution period shall last 10 days from the date when the 
disagreement is lodged with the contracting officer. During the 
supplier-contracting officer 10-day resolution period, the responsible 
contracting officer's management may help to resolve the disagreement. 
At the conclusion of the 10-day resolution period, the contracting 
officer must communicate, in writing, to the supplier his or her 
resolution of the disagreement.
    (c) Alternative dispute resolution. Alternative dispute resolution 
(ADR) procedures may be used to resolve a disagreement. If the use of 
ADR is agreed upon, the 10-day limitation is suspended. If agreement 
cannot be reached, the supplier has 10 days to lodge its disagreement 
with the SDR Official.


Sec.  601.108  SDR Official disagreement resolution.

    (a) General. If a disagreement under Sec.  601.107 is not resolved 
within 10 days after it was lodged with the contracting officer, if the 
use of ADR fails to resolve it at any time, if the supplier is not 
satisfied with the contracting officer's resolution of the 
disagreement, or if the decision not to accept or consider proposals 
under Sec.  601.105 is contested, the SDR Official is available to 
provide final resolution of the matter. The Postal Service desires to 
resolve all such matters quickly and inexpensively in keeping with the 
regulations in this part.
    (b) Scope and applicability. This procedure is established as the 
sole and exclusive means to resolve disagreements under Sec.  601.107 
and contests of decisions under Sec.  601.105. This procedure is 
intended to expeditiously resolve disagreements that are not resolved 
at the responsible contracting officer level; to reduce litigation 
expenses, inconvenience, and other costs for all parties; to facilitate 
successful business relationships with Postal Service suppliers, the 
supplier community, and other persons; and to develop further the basis 
for the Postal Service's purchasing decisions and the administrative 
records concerning those decisions. All disagreements under Sec.  
601.107 and contests of decisions under Sec.  601.105 will be lodged 
with and resolved, with finality, by the SDR Official under and in 
accordance with the sole and exclusive procedure established in this 
section.
    (c) Lodging. The disagreement under Sec.  601.107 or contest of 
decision under Sec.  601.105 must be lodged with the SDR Official in 
writing via facsimile, e-mail, hand delivery, or U.S. Mail. The 
disagreement under Sec.  601.107 or contest of decision under Sec.  
601.105 must state the factual circumstances relating to it and the 
remedy sought. A disagreement under Sec.  601.107 must also state the 
scope and outcome of the initial disagreement resolution attempt with

[[Page 1543]]

the contracting officer. The address of the SDR Official is: Room 4130 
(Attn: SDR Official), United States Postal Service Headquarters, 475 
L'Enfant Plaza, SW., Washington, DC 20260-4130. e-mail Address: 
[email protected]. Fax Number: (202) 268-0075.
    (d) Lodging timeframes. Disagreements under Sec.  601.107 or 
contests of decisions under Sec.  601.105 must be lodged with the SDR 
Official within the following timeframes:
    (1) Disagreements under Sec.  601.107 not resolved with the 
contracting officer must be lodged with the SDR Official within 20 days 
after they were lodged with the contracting officer (unless ADR had 
been used to attempt to resolve them);
    (2) Disagreements under Sec.  601.107 for which ADR had been agreed 
to be used must be lodged with the SDR Official within 10 days after 
the supplier knew or was informed by the contracting officer or 
otherwise that the matter was not resolved;
    (3) Where a supplier is dissatisfied with the contracting officer's 
resolution of a disagreement under Sec.  601.107, the supplier must 
lodge the disagreement with the SDR Official within 10 days after the 
supplier first receives notification of the contracting officer's 
resolution; and
    (4) Contests of decisions under Sec.  601.105 to decline to accept 
or consider proposals must be lodged with the SDR Official within 10 
days of the supplier's receipt of the written notice explaining the 
decision.
    (5) The SDR Official may grant an extension of time to lodge a 
disagreement under Sec.  601.107 or contest of decision under Sec.  
601.105 or to provide supporting information when warranted. Any 
request for an extension must set forth the reasons for the request, be 
made in writing, and be delivered to the SDR Official on or before the 
time to lodge a disagreement lapses.
    (e) Disagreement decision process. The SDR Official will promptly 
provide a copy of a disagreement to the contracting officer, who will 
promptly notify other interested parties. The SDR Official will 
consider a disagreement and any response by other interested parties 
and appropriate Postal Service officials within a time frame 
established by the SDR Official. The SDR Official may also meet 
individually or jointly with the person or organization lodging the 
disagreement, other interested parties, and/or Postal Service 
officials, and may undertake other activities in order to obtain 
materials, information, or advice that may help to resolve the 
disagreement. The person or organization lodging the disagreement, 
other interested parties, or Postal Service officials must promptly 
provide all relevant, nonprivileged materials and other information 
requested by the SDR Official. If a submission contains trade secrets 
or other confidential information, it should be accompanied by a copy 
of the submission from which the confidential matter has been redacted. 
The SDR Official will determine whether any redactions are appropriate 
and will be solely responsible for determining the treatment of any 
redacted materials. After obtaining such information, materials, and 
advice as may be needed, the SDR Official will promptly issue a written 
decision resolving the disagreement and will deliver the decision to 
the person or organization lodging the disagreement, other interested 
parties, and appropriate Postal Service officials. When resolving a 
disagreement raised under Sec.  601.107, the SDR Official may grant 
remedies including, but not limited to, the following:
    (1) Directing the contracting officer to revise the solicitation or 
to issue a new solicitation;
    (2) Directing the contracting officer to recompete the requirement;
    (3) Directing the contracting officer to reevaluate the award on 
the basis of current proposals and the evaluation factors contained in 
the solicitation; and
    (4) Directing the contracting officer to terminate the contract or 
to refrain from exercising options under the contract.
    (f) Guidance. The SDR Official will be guided by the regulations 
contained in this part and all applicable public laws enacted by 
Congress. Non-Postal Service procurement rules or regulations and 
revoked Postal Service regulations will not apply or be taken into 
account. Failure of any party to provide requested information may be 
taken into account by the SDR Official in the decision.
    (g) Final resolution by the SDR Official and final contract award 
of the Postal Service. A resolution by the SDR Official will be final 
and binding. If the SDR Official's final resolution affirms the 
original contract award of the contracting officer, the contracting 
officer's original contract award becomes the Postal Service's final 
contract award, and may be subject to judicial review as described in 
paragraph (h) of this section. If the SDR Official's final resolution 
directs that the Postal Service terminate the contract award and issue 
a new solicitation, recompete the requirement, or reevaluate the 
current award, the contracting officer shall implement promptly the SDR 
Official's final resolution. However, any contract award made by the 
contracting officer after a resolicitation, recompetition, or 
reevaluation directed by the SDR Official is not a final contract award 
of the Postal Service that may be subject to judicial review unless and 
until disagreements concerning that contract award have been lodged and 
resolved with finality by the SDR Official.
    (h) Judicial review. The Postal Service's final contract award, as 
described in paragraph Sec.  601.108(g), may be appealed to a Federal 
court with jurisdiction based only upon an alleged violation of the 
regulations contained in this part or an applicable public law enacted 
by Congress. The party lodging the disagreement may seek review of the 
Postal Service's final contract award only after the mandatory 
administrative remedies provided under Sec.  601.107 and Sec.  601.108 
have been exhausted.
    (i) Resolution timeframe. It is intended that this procedure 
generally will resolve disagreements under Sec.  601.107 or contests of 
decisions under Sec.  601.105 within approximately 30 days after 
receipt by the SDR Official. The time may be shortened or lengthened 
depending on the complexity of the issues and other relevant 
considerations.

Stanley F. Mires,
Chief Counsel, Legislative.
[FR Doc. 2010-385 Filed 1-11-10; 8:45 am]
BILLING CODE 7710-12-P