[Federal Register Volume 77, Number 178 (Thursday, September 13, 2012)]
[Rules and Regulations]
[Pages 56742-56743]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-22584]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Part 33

[FAC 2005-61; FAR Case 2012-008; Item IV; Docket 2012-0008, Sequence 1]
RIN 9000-AM31


Federal Acquisition Regulation; Bid Protest and Appeal 
Authorities

AGENCY: Department of Defense (DoD), General Services Administration 
(GSA), and National Aeronautics and Space Administration (NASA).

ACTION: Final rule.

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SUMMARY: DoD, GSA, and NASA are issuing a final rule amending the 
Federal Acquisition Regulation (FAR) to address bid protest and appeal 
authorities.

DATES: Effective Date: September 13, 2012.

FOR FURTHER INFORMATION CONTACT: Mr. Edward Loeb, Procurement Analyst, 
at 202-501-0650 for clarification of content. For information 
pertaining to status or publication schedules, contact the Regulatory 
Secretariat at 202-501-4755. Please cite FAC 2005-61, FAR Case 2012-
008.

SUPPLEMENTARY INFORMATION: 

I. Background

    Protests are addressed at FAR subpart 33.1, and contract disputes 
are addressed at FAR subpart 33.2. The Defense Acquisition Regulations 
Council and the Civilian Agency Acquisition Council determined that FAR 
part 33 should be amended to (1) note that there are other Federal-
court related protest authorities and dispute-appeal authorities that 
are not covered by FAR part 33 and (2) provide contracting officers 
with appropriate references to their office of legal counsel and the 
Web site for the rules of the U.S. Court of Federal Claims. FAR 33.001 
and 33.105 are added and FAR 33.101, Definitions, and 33.102, General, 
are amended by this final rule.

II. Publication of This Final Rule for Public Comment Is Not Required 
by Statute

    ``Publication of proposed regulations'', 41 U.S.C. 1707, is the 
statute which applies to the publication of the FAR. Paragraph (a)(1) 
of the statute requires that a procurement policy, regulation, 
procedure or form

[[Page 56743]]

(including an amendment or modification thereof) must be published for 
public comment if it relates to the expenditure of appropriated funds, 
and has either a significant effect beyond the internal operating 
procedures of the agency issuing the policy, regulation, procedure or 
form, or has a significant cost or administrative impact on contractors 
or offerors. This final rule is not required to be published for public 
comment, because it only refers to the statutory authorities and 
provides an internal requirement for contracting officers to contact 
their designated legal advisor for additional information whenever they 
become aware of any litigation related to their contracts. The FAR does 
not address the substance of these authorities. These requirements 
affect only the internal operating procedures of the Government.

III. Executive Orders 12866 and 13563

    Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess 
all costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). E.O. 
13563 emphasizes the importance of quantifying both costs and benefits, 
of reducing costs, of harmonizing rules, and of promoting flexibility. 
This is not a significant regulatory action and, therefore, was not 
subject to review under Section 6(b) of E.O. 12866, Regulatory Planning 
and Review, dated September 30, 1993. This rule is not a major rule 
under 5 U.S.C. 804.

IV. Regulatory Flexibility Act

    The Regulatory Flexibility Act does not apply to this rule because 
this final rule does not constitute a significant FAR revision, and 41 
U.S.C. 1707 does not require publication for public comment.

V. Paperwork Reduction Act

    The final rule does not contain any information collection 
requirements that require the approval of the Office of Management and 
Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

List of Subject in 48 CFR Part 33

    Government procurement.

    Dated: September 7, 2012.
Laura Auletta,
Director, Office of Governmentwide Acquisition Policy, Office of 
Acquisition Policy, Office of Governmentwide Policy.
    Therefore, DoD, GSA, and NASA amend 48 CFR part 33 as set forth 
below:

PART 33--PROTESTS, DISPUTES, AND APPEALS

0
1. The authority citation for 48 CFR part 33 is revised to read as 
follows:

    Authority:  40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 
U.S.C. 20113.
0
2. Add section 33.001 to read as follows:


33.001   General.

    There are other Federal court-related protest authorities and 
dispute-appeal authorities that are not covered by this part of the 
FAR, e.g., 28 U.S.C. 1491 for Court of Federal Claims jurisdiction. 
Contracting officers should contact their designated legal advisor for 
additional information whenever they become aware of any litigation 
related to their contracts.
    3. Amend section 33.101 by adding, in alphabetical order, the 
definition ``Protest venue'' to read as follows.


33.101   Definitions.

* * * * *
    Protest venue means protests filed with the agency, the Government 
Accountability Office, or the U.S. Court of Federal Claims. U.S. 
District Courts do not have any bid protest jurisdiction.

0
4. Amend section 33.102 by revising the first sentence of paragraph (a) 
to read as follows.


33.102   General.

    (a) Without regard to the protest venue, contracting officers shall 
consider all protests and seek legal advice, whether protests are 
submitted before or after award and whether filed directly with the 
agency, the Government Accountability Office (GAO), or the U.S. Court 
of Federal Claims. * * *
* * * * *
0
5. Add section 33.105 to read as follows.


33.105   Protests at the U.S. Court of Federal Claims.

    Procedures for protests at the U.S. Court of Federal Claims are set 
forth in the rules of the U.S. Court of Federal Claims. The rules may 
be found at http://www.uscfc.uscourts.gov/rules-and-forms.

[FR Doc. 2012-22584 Filed 9-12-12; 8:45 am]
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