[Federal Register Volume 81, Number 73 (Friday, April 15, 2016)]
[Proposed Rules]
[Pages 22197-22203]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-08622]


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 Proposed Rules
                                                 Federal Register
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 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.
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  Federal Register / Vol. 81, No. 73 / Friday, April 15, 2016 / 
Proposed Rules  

[[Page 22197]]



GOVERNMENT ACCOUNTABILITY OFFICE

4 CFR Part 21


Government Accountability Office, Administrative Practice and 
Procedure, Bid Protest Regulations, Government Contracts

AGENCY: Government Accountability Office.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The Government Accountability Office (GAO) is proposing to 
amend its Bid Protest Regulations, promulgated in accordance with the 
Competition in Contracting Act of 1984 (CICA), to implement the 
requirements in sec. 1501 of the Consolidated Appropriations Act for 
Fiscal Year 2014, which was enacted on January 14, 2014, and to make 
certain administrative changes. The proposed amendments implement the 
legislation's direction to establish and operate an electronic filing 
and document dissemination system for the filing of bid protests with 
GAO. At this time, GAO believes that these proposed revisions are the 
only regulatory changes necessary to implement the statutory 
requirement of sec. 1501. The proposed amendments also include 
administrative changes to reflect current practice and to streamline 
the bid protest process.

DATES: Comments must be submitted on or before May 16, 2016.

ADDRESSES: Comments may be submitted by email at 
[email protected], to the attention of Jonathan L. Kang, Senior 
Attorney, Government Accountability Office, 441 G Street NW., 
Washington, DC 20548. GAO intends to make all comments filed available 
to the public, including names and other identifying information. 
Information in a submission that the sender does not believe should be 
released should be clearly marked.

FOR FURTHER INFORMATION CONTACT: Ralph O. White (Managing Associate 
General Counsel, [email protected]), Kenneth E. Patton (Managing 
Associate General Counsel, [email protected]) or Jonathan L. Kang (Senior 
Attorney, [email protected]).

SUPPLEMENTARY INFORMATION: 

Comments Invited

    GAO is not subject to the Administrative Procedures Act and 
accordingly is not required by law to seek comments before issuing a 
final rule. However, GAO has decided to invite written comments 
regarding the proposed revisions. Application of the Administrative 
Procedures Act to GAO is not to be inferred from this invitation for 
comments. GAO will consider all comments received on or before the 
closing date for comments. GAO may change the proposed revisions based 
on the comments received.

Background

    GAO determined to undertake these revisions to GAO's Bid Protest 
Regulations as the result of a statutory requirement imposed by the 
Consolidated Appropriations Act for 2014, Public Law 113-76, 128 Stat. 
5 (Jan. 14, 2014). Section 1501 of this act directs GAO to establish 
and operate an electronic filing and document dissemination system, 
``under which, in accordance with procedures prescribed by the 
Comptroller General--(A) a person filing a protest under this 
subchapter may file the protest through electronic means; and (B) all 
documents and information required with respect to the protest may be 
disseminated and made available to the parties to the protest through 
electronic means.'' Public Law 113-76, div. I, title I, sec. 1501, 128 
Stat. 5, 433-34 (Jan. 17, 2014). At the time of this proposed rule, GAO 
is developing the system, which will be called the Electronic Protest 
Docketing System (EPDS). EPDS will be the sole means for filing a bid 
protest at GAO (with the exception of protests containing classified 
information), and will enable parties to a bid protest and GAO to file 
and receive documents. Additional guidance for the use of EPDS will be 
provided by GAO, separate from the regulations in 4 CFR part 21.
    In addition to directing GAO to establish and operate an electronic 
filing and document dissemination system, sec. 1501 of the Consolidated 
Appropriations Act for 2014 authorizes GAO to ``require each person who 
files a protest under this subchapter to pay a fee to support the 
establishment and operation of the electronic system under this 
subsection.'' Public Law 113-76, div. I, title I, sec. 1501, 128 Stat. 
5, 434 (Jan. 17, 2014). GAO anticipates requiring persons filing a 
protest to pay a fee to file a protest through EPDS, which, as 
discussed above, will be the sole means for filing a bid protest at 
GAO. Additional guidance regarding procedures for payment of the fee 
will be provided by GAO, separate from the regulations in 4 CFR part 
21.
    GAO anticipates the bid protest filing fee will be $350. GAO 
derived the fee using actual costs GAO has incurred to develop the 
system, estimates of future costs for hosting and maintaining the 
system (adjusted for inflation), estimates of future annual bid protest 
filings as determined by considering historical filings of the past 
five fiscal years, and a recovery period for development costs of 
approximately six years. System establishment costs include payments 
made by GAO under an interagency agreement for development of the 
system, as well as GAO's internal costs incurred for system 
development. Costs to maintain the system include estimated payments 
for post-development hosting and support of the electronic protest 
filing system, as well as estimates of GAO's internal costs associated 
with maintaining the system after it has been deployed. All fees 
collected will be maintained in a separate account established by GAO. 
The fee will be reviewed every two years to ensure that it is properly 
calibrated to recover the costs of establishing and maintaining the 
system.
    The proposed revisions to GAO's Bid Protest Regulations to 
implement sec. 1501 of the Consolidated Appropriations Act for Fiscal 
Year 2014 and to make certain administrative changes to reflect current 
practice and to streamline the bid protest process are set forth below:

Interested Party

    GAO proposes to revise paragraph (a)(2) of 4 CFR 21.0 to clarify 
that the Office of Management and Budget should be abbreviated as 
``OMB.''

Federal Agency or Agency

    GAO proposes to revise paragraph (c) of 4 CFR 21.0 to change a 
reference to

[[Page 22198]]

the Architect of the Capitol to be gender-neutral.

Electronic Protest Docket System (EPDS)

    GAO proposes to redesignate paragraph (f) of 4 CFR 21.0 as 
paragraph (g), redesignate paragraph (g) as paragraph (h), and add a 
new paragraph (f). Revised paragraph (f) defines EPDS as GAO's web-
based electronic docketing system. In the final rule, GAO will provide 
a Web site where additional guidance regarding the EPDS may be found.
    To clarify how a document is ``filed'' under GAO's Bid Protest 
Regulations, GAO proposes to revise redesignated paragraph (g) to 
specify that EPDS is the sole method for filing a document with GAO for 
a bid protest (with the exception of protests containing classified 
material, as explained in a sentence added to the revised paragraph (h) 
of 4 CFR 21.1). The proposed revisions throughout this proposed rule 
reflect that all filings are presumed to be made through EPDS (with the 
exception of protests containing classified material), which will 
enable the parties and GAO to file and receive documents.

Filing a Protest

    GAO proposes to revise paragraph (b) of 4 CFR 21.1 to specify that 
EPDS will be the sole means for filing a bid protest at GAO.
    GAO proposes to revise paragraph (c)(1) of 4 CFR 21.1 to ensure a 
consistent reference to the term ``email.''
    GAO proposes to revise the last sentence of paragraph (g) of 4 CFR 
21.1 to reflect the requirement in redesignated paragraph (g) of 4 CFR 
21.0 that documents must be filed through EPDS.
    GAO proposes to add a sentence to paragraph (h) of 4 CFR 21.1 to 
reflect that documents containing classified material may not be filed 
through EPDS.

Time for Filing a Protest

    GAO proposes to add a sentence to paragraph (a)(1) of 4 CFR 21.2 to 
clarify the time for filing challenges to a solicitation where the 
basis for a protest becomes known when there is no solicitation closing 
date or when no further submissions in response to the solicitation are 
anticipated. Such protests must be filed within 10 days of when the 
alleged impropriety was known or should have been known.
    GAO proposes to revise paragraph (a)(2) of 4 CFR 21.2 to clarify 
that the 10-day ``safe-harbor'' provision in paragraph (a)(2) (i.e., 
the provision in paragraph (a)(2) establishing that protests 
challenging a procurement conducted on the basis of competitive 
proposals under which a debriefing is requested and, when requested, is 
required shall be filed not later than 10 days after the date on which 
the debriefing is held) does not apply to protests challenging alleged 
solicitation improprieties covered by paragraph (a)(1) of 4 CFR 21.2. 
This clarification resolves a potential uncertainty in 4 CFR 21.2(a)(2) 
that was addressed by GAO in a recent decision, Protect the Force, 
Inc.--Recon., B-411897.3, Sept. 30, 2015, 2015 CPD ] 306, wherein we 
denied the protester's request to reconsider our dismissal of its 
protest challenging the terms of a solicitation as untimely. The 
protest was filed within 10 days of a requested and required 
debriefing, but more than 10 days after the agency allegedly revised 
its solicitation. Because the solicitation did not establish a new 
closing date, we concluded that the challenge to the terms of the 
solicitation was required to be filed within 10 days of the revision to 
the solicitation. We concluded that the outcome in the prior dismissal 
was consistent with our decision in Armorworks Enters., LLC, B-400394, 
B-400394.2, Sept. 23, 2008, 2008 CPD ] 176 at 6, and the principles 
enunciated by the United States Court of Appeals for the Federal 
Circuit in Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308, 
1313-14 (Fed. Cir. 2007). The revision here is to ensure that paragraph 
(a)(2) of 4 CFR 21.2 expressly reflects our decision in Protect the 
Force, Inc.--Recon.
    GAO proposes to revise paragraph (a)(3) of 4 CFR 21.2 to make a 
minor phrasing change for purposes of consistency to the requirement 
that protests to GAO following agency-level protests must be filed 
within 10 days of actual or constructive knowledge of initial adverse 
agency action.

Communications Among Parties

    GAO proposes to revise the heading of 4 CFR 21.3.
    GAO proposes to revise paragraph (a) of 4 CFR 21.3 to make minor 
phrasing changes for purposes of consistency, and to reflect the 
requirement in redesignated paragraph (g) of 4 CFR 21.0 that documents 
must be filed through EPDS. Revised paragraph (a) also requires that 
parties to a protest must provide copies of all communications with the 
agency or other parties to the protest to the other participating 
parties either through EPDS or email. When the final rule is published 
GAO will provide a link to a GAO Web site in revised paragraph (a) that 
will provide information concerning when communications must be made 
through EPDS or email.

Submission of Agency Report

    GAO proposes to revise paragraph (c) of 4 CFR 21.3 to reflect the 
requirement in redesignated paragraph (g) of 4 CFR 21.0 that documents 
must be filed through EPDS. Revised paragraph (c) also clarifies that 
if the fifth day for filing the agency's required response to a 
protester's request for documents falls on a weekend or federal 
holiday, the response shall be filed on the last business day that 
precedes the weekend or federal holiday.
    GAO proposes to revise paragraph (d) of 4 CFR 21.3 to reflect the 
requirement in redesignated paragraph (g) of 4 CFR 21.0 that documents 
must be filed through EPDS. Revised paragraph (d) also deletes the 
requirement for the agency report to include a copy of the protest, as 
this document will have already been provided to all parties.
    GAO proposes to revise paragraph (e) of 4 CFR 21.3 to provide that 
where a protester or intervenor does not have counsel admitted to a 
protective order, and documents are withheld from the protester or 
intervenor on that basis, the agency must provide appropriately-
redacted documents that adequately inform the protester or intervenor 
of the basis for the agency's arguments in response to the protest. In 
the final rule, the revised paragraph (e) will provide a link to a GAO 
Web site that provides information concerning filing of documents when 
no protective order is issued, or where a protester or intervenor is 
not admitted to a protective order.

Additional Documents

    GAO proposes to revise paragraph (f) of 4 CFR 21.3 to reflect the 
requirement in redesignated paragraph (g) of 4 CFR 21.0 that documents 
must be filed through EPDS. Paragraph (f) is also revised to make minor 
phrasing changes, consistent with the proposed revisions in paragraph 
(c) of 4 CFR 21.3.
    GAO proposes to revise paragraphs (g) and (h) of 4 CFR 21.3 to 
reflect the requirement in redesignated paragraph (g) of 4 CFR 21.0 
that documents must be filed through EPDS.
    GAO proposes to revise paragraph (i) of 4 CFR 21.3 by replacing the 
previous section with new paragraphs (i)(1), (i)(2), and (i)(3), to 
clarify the time when comments on the agency report must be filed. New 
paragraph (i)(1) provides that comments on the agency report must be 
filed within 10 days after the agency files the report, unless GAO 
establishes a shorter period of time or grants an extension. New 
paragraph (i)(2)

[[Page 22199]]

provides that a protest shall be dismissed if the protester does not 
file comments within the period of time established in revised 
paragraph (i)(1). New paragraph (i)(3) provides that a protest 
allegation or argument shall be dismissed where the agency report 
responds to the allegation or argument, but the protester's comments do 
not address the agency's response. New paragraph (i)(3) reflects a 
longstanding practice by GAO, described in numerous GAO bid protest 
decisions.

Protective Orders

    GAO proposes to revise paragraph (a) of 4 CFR 21.4 to reflect that 
GAO generally does not issue a protective order where an intervenor 
retains counsel, but the protester does not. This revision reflects 
GAO's longstanding practice of generally permitting the protester's 
decision whether to retain counsel to dictate whether GAO will issue a 
protective order. This practice is consistent with GAO's statutory 
mandate to provide for an inexpensive protest forum. 31 U.S.C. 
3554(a)(1). Notwithstanding this general practice, GAO may, if 
circumstances warrant, issue a protective order where the protester is 
not represented by counsel.
    GAO proposes to redesignate paragraph (b) of 4 CFR 21.4 as 
paragraph (c), redesignate paragraph (c) as paragraph (d), redesignate 
paragraph (d) as paragraph (e), and add a new paragraph (b). New 
paragraph (b) provides that when parties file documents that are 
covered by a protective order, the parties must provide copies of 
proposed redacted versions of the document to the other parties. 
Proposed redacted versions of documents should not be filed in EPDS; 
rather, the party responsible for preparing the proposed redacted 
version of the document should provide the document to the other 
parties by email or facsimile. New paragraph (b) provides that, where 
appropriate, the exhibits to the agency report or other documents may 
be proposed for redaction in their entirety. New paragraph (b) also 
provides that the party that files the protected document must file in 
EPDS within 5 days a final, agreed-to redacted version of the document. 
New paragraph (b) also directs the parties to seek GAO's resolution of 
any disputes concerning redacted documents.
    GAO proposes to revise redesignated paragraph (c) of 4 CFR 21.4, to 
reflect the requirements of revised paragraph (e) of 4 CFR 21.3.
    GAO proposes to revise redesignated paragraph (d) of 4 CFR 21.4, to 
reflect the requirement in redesignated paragraph (g) of 4 CFR 21.0 
that documents must be filed through EPDS.

Protest Issues Not for Consideration

    GAO proposes to revise paragraph (a) of 4 CFR 21.5 to reflect the 
recodification of statutory provisions in Title 41 of the United States 
Code.
    GAO proposes to revise paragraph (b) of 4 CFR 21.5 to make 
consistent references to the Small Business Administration (SBA). GAO 
proposes to revise paragraph (d) of 4 CFR 21.5 to reflect the 
recodification of statutory provisions in Title 41 of the United States 
Code.
    GAO proposes to revise paragraph (e) of 4 CFR 21.5 to revise the 
term ``in GAO'' to ``with GAO.''
    GAO proposes to revise paragraph (f) of 4 CFR 21.5 to replace the 
word ``which'' with ``that'' in two locations.
    GAO proposes to revise paragraph (g) of 4 CFR 21.5 to reflect the 
recodification of statutory provisions in Title 40 of the United States 
Code.
    GAO proposes to revise paragraph (h) of 4 CFR 21.5 to reflect the 
requirement in redesignated paragraph (g) of 4 CFR 21.0 that documents 
must be filed through EPDS.
    GAO proposes to add paragraph (l) to 4 CFR 21.5 to reflect that, 
under the provisions of 10 U.S.C. 2304(e)(1) and 41 U.S.C. 4106(f)(1), 
GAO does not have jurisdiction to review protests of orders issued 
under task or delivery order contracts where the order is valued at 
less than $10 million, unless it is alleged that the order increases 
the scope, period, or maximum value of the contract under which the 
order was issued. At the time of this proposed rule, the provisions 
concerning procurements under Title 10 are permanent. The provisions 
concerning procurements under Title 41, however, are subject to a 
sunset clause, under which GAO's jurisdiction to hear protests over $10 
million will no longer be in effect after September 30, 2016. 41 U.S.C. 
4106(f)(1).
    GAO proposes to add paragraph (m) to 4 CFR 21.5 to clarify GAO's 
review of awards that are not procurement contracts. Proposed new 
paragraph (m) reflects GAO's longstanding view that GAO's statutory 
jurisdiction under CICA does not include the review of protests of 
awards, or solicitations for awards, or of agreements other than 
procurement contracts, with the exception of instances where an agency 
has agreed in writing to have nonstatutory protests decided by GAO, as 
described in 4 CFR 21.13. The new paragraph (m) proposes to clarify 
that GAO reviews protests that an agency is improperly using a 
nonprocurement instrument.

Withholding of Award and Suspension of Contract Performance

    GAO proposes to revise 4 CFR 21.6 to require agencies to file a 
notification where it overrides a statutory requirement to withhold 
award or suspend contract performance and to require agencies to file 
any issued determination. 31 U.S.C. 3553(c)(2)(B), (d)(3)(C)(ii). GAO 
previously did not require this information, but believes it is 
necessary to implement our statutory requirement, pursuant to 31 U.S.C. 
3554(b)(2), to consider the basis for an agency's override in 
determining the remedy to recommend in the event GAO sustains a 
protest, as provided in paragraph (c) of 4 CFR 21.8.

Hearings

    GAO proposes to revise paragraph (a) of 4 CFR 21.7 to reflect the 
requirement in redesignated paragraph (g) of 4 CFR 21.0 that documents 
must be filed through EPDS.
    GAO proposes to revise paragraph (e) of 4 CFR 21.7 to reflect GAO's 
longstanding practice of not providing hearing transcripts, but 
permitting the parties to provide for transcription of a hearing as 
long as a copy of such transcript is provided to GAO at the parties' 
expense.

Remedies

    GAO proposed to add new headings to paragraphs (e) and (f) which 
will distinguish the different remedial recommendations.

Recommendation for Reimbursement of Costs

    GAO proposes to revise paragraph (e) of 4 CFR 21.8 to provide more 
specific guidance regarding recommendations for reimbursement of 
protest costs. Revised paragraph (e) requires the agency to file a 
response to the request within 15 days after the request is filed. The 
prior version of paragraph (e) provided that the agency ``may'' respond 
within 15 days. This change is intended to allow the agency to either 
agree to the request, which eliminates the need for GAO to issue a 
decision, or to provide a specific basis for the agency's objection to 
the request, upon which the protester must comment. Revised paragraph 
(e) also requires the protester to file comments on the agency's 
response within 10 days, and further provides that GAO will dismiss the 
request if the protester fails to file comments within 10 days. This 
change is intended to provide an adequate record for GAO to review in 
issuing its decision, and also reflects that GAO will not issue a 
decision where the protester effectively abandons its request by

[[Page 22200]]

failing to comment on the agency's response.

Recommendation on the Amount of Costs

    GAO proposes to add a heading to paragraph (f) of 4 CFR 21.8 to 
highlight specific guidance regarding recommendations on the amount of 
costs to be reimbursed.
    GAO proposes to revise paragraph (f)(2) by moving the discussion of 
disagreements between the agency and protester to revised paragraph 
(f)(3) for purposes of clarity.
    New paragraph (f)(3) reflects GAO's longstanding practice of not 
recommending that an agency reimburse a protester its costs for filing 
and pursuing a protest where the protester does not diligently pursue 
its claim for costs.
    GAO proposes to add a new paragraph (f)(4) to require the agency to 
file a response to the request within 15 days after the request is 
filed. The prior version of paragraph (f) did not require the agency to 
respond to a request. This change is intended to allow the agency to 
either agree to the request, which eliminates the need for GAO to issue 
a decision, or to provide a specific basis for the agency's objection 
to the request, upon which the protester must comment. Revised 
paragraph (f)(4) also requires the protester to file comments on the 
agency's response within 10 days, and further provides that GAO will 
dismiss the request if the protester fails to file comments within 10 
days. This change is intended to provide an adequate record for GAO to 
review in issuing its decision, and also reflects that GAO will not 
issue a decision where the protester effectively abandons its request 
by failing to comment on the agency's response.
    GAO proposes to add a new paragraph (f)(5) to reflect that GAO will 
recommend the amount of costs the agency should pay, and that GAO may 
also recommend that the agency pay the protester the costs of pursuing 
a claim for costs before GAO.
    GAO proposes to redesignate former paragraph (f)(3) as paragraph 
(f)(6). Redesignated paragraph (f)(6) is revised to require the agency 
to file within 60 days a notification of the action the agency took in 
response to the recommendation.

Time for Decision by GAO

    GAO proposes to revise paragraph (a) of 4 CFR 21.9 to reflect that 
a bid protest will be resolved within 100 days after it is filed, but 
that other decisions are not subject to the 100-day deadline. Revised 
paragraph (a) provides that GAO will attempt to resolve a request for 
recommendation for reimbursement of protest costs under 4 CFR 21.8(e), 
a request for recommendation on the amount of protest costs under 4 CFR 
21.8(f), or a request for reconsideration under 4 CFR 21.14 within 100 
days after the request is filed.

Express Options, Flexible Alternative Procedures, Accelerated 
Schedules, Summary Decisions, and Status and Other Conferences

    GAO proposes to revise paragraphs (a), (c), (d)(1), (d)(2), and 
(d)(3) of 4 CFR 21.10 to reflect the requirement in redesignated 
paragraph (g) of 4 CFR 21.0 that documents must be filed through EPDS.

Effect of Judicial Proceedings

    GAO proposes to revise paragraph (a) of 4 CFR 21.11 to reflect the 
requirement in redesignated paragraph (g) of 4 CFR 21.0 that documents 
must be filed through EPDS.

Distribution of Decisions

    GAO proposes to revise paragraph (b) of 4 CFR 21.12 to reflect that 
GAO will distribute decisions on protests to the parties through EPDS.

Nonstatutory Protests

    GAO proposes to revise paragraph (b) of 4 CFR 21.13 to reflect 
proposed revisions to sections 21.6 and 21.8 of this title.

Request for Reconsideration

    GAO proposes to revise paragraph (b) of 4 CFR 21.14 to reflect the 
requirement in redesignated paragraph (g) of 4 CFR 21.0 that documents 
must be filed through EPDS.
    GAO proposes to revise paragraph (c) of 4 CFR 21.11 to clarify that 
the word ``our'' refers to GAO.

List of Subjects in 4 CFR Part 21

    Administrative practice and procedure, Appeals, Bid protest 
regulations, Government contracts.

    For the reasons set out in the preamble, title 4, chapter i, 
subchapter B, part 21 of the Code of Federal Regulations is proposed to 
be revised to read as follows:

PART 21--BID PROTEST REGULATIONS

0
1. The authority citation for Part 21 continues to read as follows:

    Authority:  31 U.S.C. 3551-3556.

0
2. In Sec.  21.0:
0
a. Amend paragraph (a)(2) introductory text by adding the abbreviation 
``(OMB)'' between the words Budget and Circular;
0
b. Amend paragraph (c) by removing the word ``his'' and adding in its 
place the words ``the Architect's'';
0
c. Redesignate paragraphs (f) and (g) as paragraphs (g) and (h), 
respectively, and add a new paragraph (f);
0
d. Revise newly redesignated paragraph (g).
    The revision and addition read as follows:


Sec.  21.0  Definitions.

* * * * *
    (f) Electronic Protest Docket System (EPDS) is GAO's web-based 
electronic docketing system. GAO's Web site includes instructions and 
guidance on the use of EPDS.
    (g) A document is filed on a particular day when it is received in 
EPDS by 5:30 p.m., Eastern Time. Delivery of a protest or other 
document by means other than those set forth in the online EPDS 
instructions does not constitute a filing. Filing a document in EPDS 
constitutes notice to all parties of that filing.
* * * * *
0
3. Amend Sec.  21.1 by revising paragraphs (b) and (c)(1), the third 
sentence of paragraph (g), and by adding a new first sentence to 
paragraph (h) to read as follows:


Sec.  21.1  Filing a protest.

* * * * *
    (b) Protests must be filed through the EPDS.
    (c)* * *
    (1) Include the name, street address, email address, and telephone 
and facsimile numbers of the protester,
* * * * *
    (g) * * * This information must be identified wherever it appears, 
and within 1 day after the filing of its protest, the protester must 
file a final redacted copy of the protest which omits the information.
    (h) Protests and other documents containing classified information 
may not be filed through the EPDS. * * *
* * * * *
0
4. Amend Sec.  21.2 by adding a third sentence to paragraph (a)(1) and 
by revising the second sentence of paragraph (a)(2) and the first 
sentence of paragraph (a)(3) to read as follows:


Sec.  21.2  Time for filing.

    (a)(1) * * * If no closing time has been established, or if no 
further submissions are anticipated, any alleged solicitation 
improprieties must be protested within 10 days of when the alleged 
impropriety was known or should have been known.

[[Page 22201]]

    (2) * * * In such cases, with respect to any protest basis which is 
known or should have been known either before or as a result of the 
debriefing, and which does not involve an alleged solicitation 
impropriety covered by paragraph (a)(1) of this section, the initial 
protest shall not be filed before the debriefing date offered to the 
protester, but shall be filed not later than 10 days after the date on 
which the debriefing is held.
    (3) If a timely agency-level protest was previously filed, any 
subsequent protest to GAO must be filed within 10 days of actual or 
constructive knowledge of initial adverse agency action, provided the 
agency-level protest was filed in accordance with paragraphs (a)(1) and 
(2) of this section, unless the agency imposes a more stringent time 
for filing, in which case the agency's time for filing will control. * 
* *
* * * * *
0
5. Amend Sec.  21.3 by revising the section heading and paragraphs (a), 
(c), (d), and (e), the first sentence of paragraph (f), paragraph (g), 
the first sentence of paragraph (h), and paragraph (i) to read as 
follows:


Sec.  21.3  Notice of protest, communications among parties, submission 
of agency report, and time for filing of comments on report.

    (a) GAO shall notify the agency within 1 day after the filing of a 
protest, and, unless the protest is dismissed under this part, shall 
promptly provide a written confirmation to the agency and an 
acknowledgment to the protester. The agency shall immediately give 
notice of the protest to the awardee if award has been made or, if no 
award has been made, to all bidders or offerors who appear to have a 
substantial prospect of receiving an award. The agency shall provide 
copies of the protest submissions to those parties, except where 
disclosure of the information is prohibited by law, with instructions 
to communicate further directly with GAO. All parties shall provide 
copies of all protest communications to the agency and to other 
participating parties either through EPDS or by email. GAO's Web site 
includes guidance regarding when to file through EPDS versus 
communicating by email or other means.
* * * * *
    (c) The agency shall file a report on the protest within 30 days 
after receiving notice of the protest from GAO. The report provided to 
the parties need not contain documents which the agency has previously 
provided or otherwise made available to the parties in response to the 
protest. At least 5 days prior to the filing of the report, in cases in 
which the protester has filed a request for specific documents, the 
agency shall file a response to the request for documents. If the fifth 
day prior to the filing of the report falls on a weekend or Federal 
holiday, the response shall be filed on the last business day that 
precedes the weekend or holiday. The agency's response shall, at a 
minimum, identify whether the requested documents exist, which of the 
requested documents or portions thereof the agency intends to produce, 
which of the requested documents or portions thereof the agency intends 
to withhold, and the basis for not producing any of the requested 
documents or portions thereof. Any objection to the scope of the 
agency's proposed disclosure or nondisclosure of documents must be 
filed within 2 days of receipt of this response.
    (d) The report shall include the contracting officer's statement of 
the relevant facts, including a best estimate of the contract value, a 
memorandum of law, and a list and a copy of all relevant documents, or 
portions of documents, not previously produced, including, as 
appropriate: the bid or proposal submitted by the protester; the bid or 
proposal of the firm which is being considered for award, or whose bid 
or proposal is being protested; all evaluation documents; the 
solicitation, including the specifications; the abstract of bids or 
offers; and any other relevant documents. In appropriate cases, a party 
may file a request that another party produce relevant documents, or 
portions of documents, that are not in the agency's possession.
    (e) Where a protester or intervenor does not have counsel admitted 
to a protective order and documents are withheld from the protester or 
intervenor on that basis, the agency shall file redacted documents that 
adequately inform the protester and/or intervenor of the basis of the 
agency's arguments in response to the protest. GAO's Web site provides 
guidance regarding filing documents where no protective order is issued 
or where a protester or intervenor does not have counsel admitted to a 
protective order.
    (f) The agency may file a request for an extension of time for the 
submission of the response to be provided by the agency pursuant to 
Sec.  21.3(c) or for the submission of the agency report. * * *
    (g) The protester may file a request for additional documents after 
receipt of the agency report when their existence or relevance first 
becomes evident. Except when authorized by GAO, any request for 
additional documents must be filed not later than 2 days after their 
existence or relevance is known or should have been known, whichever is 
earlier. The agency shall file the requested documents, or portions of 
documents, within 2 days or explain why it is not required to produce 
the documents.
    (h) Upon a request filed by a party, GAO will decide whether the 
agency must provide any withheld documents, or portions of documents, 
and whether this should be done under a protective order. * * *
    (i)(1) Comments on the agency report shall be filed within 10 days 
after the agency has filed the report, except where GAO has granted an 
extension of time, or where GAO has established a shorter period for 
filing of comments. Extensions will be granted on a case-by-case basis.
    (2) The protest shall be dismissed unless the protester files 
comments within the period of time established in Sec.  21.3(i)(1).
    (3) GAO will dismiss any protest allegation or argument where the 
agency's report responds to the allegation or argument, but the 
protester's comments fail to address that response.
* * * * *
0
6. In Sec.  21.4:
0
a. Amend paragraph (a) by removing the word ``under'' in the first 
sentence and adding in its place the word ``to''; and adding a fifth 
sentence;
0
b. Redesignate paragraphs (b), (c), and (d) as paragraphs (c), (d), and 
(e), respectively, and add a new paragraph (b);
0
c. Revise the first sentence of newly redesignated paragraph (c); and 
revise the first and third sentences of newly designated paragraph (d).
    The addition and revisions read as follows:


Sec.  21.4  Protective orders.

    (a) * * * GAO generally does not issue a protective order where an 
intervenor retains counsel, but the protester does not.
    (b) Any agency or party filing a document that the agency or party 
believes to contain protected material shall provide to the other 
parties (unless they are not admitted to the protective order) an 
initial proposed redacted version of the document within 1 day after 
the protected version is filed. Where appropriate, the exhibits to the 
agency report or other documents may be proposed for redaction in their 
entirety. Within 5 days after the proposed redacted version of a 
document is provided, the party that authored the document shall file a 
final

[[Page 22202]]

redacted version of the document, which has been agreed to by all of 
the parties. Only the final agreed-to version of a redacted document 
must be filed. If the parties are unable to reach an agreement 
regarding redactions, the objecting party may submit the matter to GAO 
for resolution. Until GAO resolves the matter, the disputed information 
must be treated as protected.
    (c) If no protective order has been issued, or a protester or 
intervenor does not have counsel admitted to a protective order, the 
agency may withhold from the parties those portions of its report that 
would ordinarily be subject to a protective order, provided that the 
requirements of Sec.  21.3(e) are met. * * *
    (d) After a protective order has been issued, counsel or 
consultants retained by counsel appearing on behalf of a party may 
apply for admission under the order by filing an application. * * * 
Objections to an applicant's admission shall be filed within 2 days 
after the application is filed, although GAO may consider objections 
filed after that time.
* * * * *
0
7. In Sec.  21.5:
0
a. Amend paragraph (a) by removing ``601-613'' and adding in its place 
``7101-7109'';
0
b. Revise paragraph (b)(1), the first sentence in paragraph (b)(2), and 
paragraph (b)(3);
0
c. Amend paragraph (d) by removing ``423'' and adding in its place 
``2101-2107'';
0
d. Amend paragraph (e) by removing the words ``in GAO'' and adding in 
their place the words ``with GAO'';
0
e. Amend paragraph (f) by removing the word ``which'' in two places and 
adding in its place the word ``that'';
0
f. Amend paragraph (g) by removing ``472'' and adding in its place 
``102'';
0
g. Revise paragraph (h); and
0
h. Add paragraphs (l) and (m).
    The revisions and additions read as follows:


Sec.  21.5  Protest issues not for consideration.

* * * * *
    (b) Small Business Administration (SBA) issues. (1) Small business 
size standards and North American Industry Classification System 
(NAICS) standards. Challenges of established size standards or the size 
status of particular firms, and challenges of the selected NAICS code 
may be reviewed solely by the SBA. 15 U.S.C. 637(b)(6).
    (2) Small Business Certificate of Competency Program. Referrals 
made to the SBA pursuant to sec. 8(b)(7) of the Small Business Act, or 
the issuance of, or refusal to issue, a certificate of competency under 
that section will generally not be reviewed by GAO. * * *
    (3) Procurements under sec. 8(a) of the Small Business Act. Under 
that section, since contracts are entered into with the SBA at the 
contracting officer's discretion and on such terms as are agreed upon 
by the procuring agency and the SBA, the decision to place or not to 
place a procurement under the 8(a) program is not subject to review 
absent a showing of possible bad faith on the part of government 
officials or that regulations may have been violated. 15 U.S.C. 637(a).
* * * * *
    (h) Subcontract protests. GAO will not consider a protest of the 
award or proposed award of a subcontract except where the agency 
awarding the prime contract has filed a request that subcontract 
protests be decided pursuant to Sec.  21.13.
* * * * *
    (l) Protests of orders issued under task or delivery order 
contracts. As established in 10 U.S.C. 2304c(e)(1) and 41 U.S.C. 
4106(f)(1), GAO does not have jurisdiction to review protests of orders 
issued under task or delivery order contracts where the order is valued 
at less than $10 million, unless it is alleged that the order increases 
the scope, period, or maximum value of the contract under which the 
order was issued.
    (m) Protests of awards, or solicitations for awards, of agreements 
other than procurement contracts. GAO generally does not review 
protests of awards, or solicitations for awards, of agreements other 
than procurement contracts, with the exception of awards or agreements 
as described in Sec.  21.13; GAO does, however, review protests 
alleging that an agency is improperly using a non-procurement 
instrument.
0
8. Revise Sec.  21.6 to read as follows:


Sec.  21.6  Withholding of award and suspension of contract 
performance.

    When a protest is filed, the agency may be required to withhold 
award and to suspend contract performance. The requirements for the 
withholding of award and the suspension of contract performance are set 
forth in 31 U.S.C. 3553(c) and (d); GAO does not administer the 
requirements to stay award or suspend contract performance. An agency 
shall file a notification in instances where it overrides a requirement 
to withhold award or suspend contract performance, and it shall file a 
copy of any issued determination and finding.
0
9. Amend Sec.  21.7 by revising the first sentence of paragraph (a) and 
revising paragraph (e) to read as follows:


Sec.  21.7  Hearings.

    (a) Upon a request filed by a party or on its own initiative, GAO 
may conduct a hearing in connection with a protest. * * *
* * * * *
    (e) GAO does not provide for hearing transcripts. If the parties 
wish to have a hearing transcribed, they may do so at their own 
expense, so long as a copy of the transcript is provided to GAO at the 
parties' expense.
* * * * *
0
10. Amend Sec.  21.8 by revising paragraphs (e), adding a paragraph (f) 
subject heading, revising paragraphs (f)(2) and (3), and adding 
paragraphs (f)(4) through (6) to read as follows:


Sec.  21.8  Remedies.

* * * * *
    (e) Recommendation for reimbursement of costs. If the agency 
decides to take corrective action in response to a protest, GAO may 
recommend that the agency pay the protester the reasonable costs of 
filing and pursuing the protest, including attorneys' fees and 
consultant and expert witness fees. The protester shall file any 
request that GAO recommend that costs be paid not later than 15 days 
after the date on which the protester learned (or should have learned, 
if that is earlier) that GAO had closed the protest based on the 
agency's decision to take corrective action. The agency shall file a 
response within 15 days after the request is filed. The protester shall 
file comments on the agency response within 10 days of receipt of the 
response. GAO shall dismiss the request unless the protester files 
comments within the 10-day period, except where GAO has granted an 
extension or established a shorter period.
    (f) Recommendation on the amount of costs.
* * * * *
    (2) The agency shall issue a decision on the claim for costs as 
soon as practicable after the claim is filed.
    (3) If the protester and the agency cannot reach agreement 
regarding the amount of costs within a reasonable time, the protester 
may file a request that GAO recommend the amount of costs to be paid, 
but such request shall be filed within 10 days of when the agency 
advises the protester that the agency will not participate in further 
discussions regarding the amount of costs.
    (4) Within 15 days after receipt of the request that GAO recommend 
the

[[Page 22203]]

amount of costs to be paid, the agency shall file a response. The 
protester shall file comments on the agency response within 10 days of 
receipt of the response. GAO shall dismiss the request unless the 
protester files comments within the 10-day period, except where GAO has 
granted an extension or established a shorter period.
    (5) In accordance with 31 U.S.C. 3554(c), GAO may recommend the 
amount of costs the agency should pay. In such cases, GAO may also 
recommend that the agency pay the protester the costs of pursuing the 
claim for costs before GAO.
    (6) Within 60 days after GAO recommends the amount of costs the 
agency should pay the protester, the agency shall file a notification 
of the action the agency took in response to the recommendation.
0
11. Amend Sec.  21.9 by revising paragraph (a) to read as follows:


Sec.  21.9  Time for decision by GAO.

    (a) GAO shall issue a decision on a protest within 100 days after 
it is filed. GAO will attempt to resolve a request for recommendation 
for reimbursement of protest costs under Sec.  21.8(e), a request for 
recommendation on the amount of protest costs under Sec.  21.8(f), or a 
request for reconsideration under Sec.  21.14 within 100 days after the 
request is filed.
* * * * *
0
12. Amend Sec.  21.10 by revising paragraph (a), the first sentence of 
paragraph (c), and paragraphs (d)(1) and (2) and (e) as follows:


Sec.  21.10  Express options, flexible alternative procedures, 
accelerated schedules, summary decisions, and status and other 
conferences.

    (a) Upon a request filed by a party or on its own initiative, GAO 
may decide a protest using an express option.
* * * * *
    (c) Requests for the express option shall be filed not later than 5 
days after the protest or supplemental/amended protest is filed. * * *
    (d) * * *
    (1) The agency shall file a complete report within 20 days after it 
receives notice from GAO that the express option will be used.
    (2) Comments on the agency report shall be filed within 5 days 
after receipt of the report.
* * * * *
    (e) GAO, on its own initiative or upon a request filed by the 
parties, may use flexible alternative procedures to promptly and fairly 
resolve a protest, including alternative dispute resolution, 
establishing an accelerated schedule, and/or issuing a summary 
decision.
* * * * *
0
13. Amend Sec.  21.11 by revising paragraph (a) to read as follows:


Sec.  21.11  Effect of judicial proceedings.

    (a) A protester must immediately advise GAO of any court proceeding 
which involves the subject matter of a pending protest and must file 
copies of all relevant court documents.
* * * * *
0
14. Amend Sec.  21.12 by revising paragraph (b) to read as follows:


Sec.  21.12  Distribution of decisions.

* * * * *
    (b) Decisions will be distributed to the parties through the EPDS.
0
15. Amend Sec.  21.13 by revising paragraph (b) to read as follows:


Sec.  21.13  Nonstatutory protests.

* * * * *
    (b) The provisions of this part shall apply to nonstatutory 
protests except for:
    (1) Sec.  21.8(d) pertaining to recommendations for the payment of 
costs; and
    (2) Sec.  21.6 pertaining to the withholding of award and the 
suspension of contract performance pursuant to 31 U.S.C. 3553(c) and 
(d).
0
16. Amend Sec.  21.14 by revising paragraph (b) and the second sentence 
of paragraph (c) to read as follows:


Sec.  21.14  Request for reconsideration.

* * * * *
    (b) A request for reconsideration of a bid protest decision shall 
be filed not later than 10 days after the basis for reconsideration is 
known or should have been known, whichever is earlier.
    (c) * * * To obtain reconsideration, the requesting party must show 
that GAO's prior decision contains errors of either fact or law, or 
must present information not previously considered that warrants 
reversal or modification of the decision; GAO will not consider a 
request for reconsideration based on repetition of arguments previously 
raised.

Susan A. Poling,
General Counsel, United States Government Accountability Office.
[FR Doc. 2016-08622 Filed 4-14-16; 8:45 am]
 BILLING CODE 1610-02-P