Bid Protests at GAO: A Descriptive Guide (Other Written Prod., 09/01/95,
GAO/OGC-95-27).
GAO published a descriptive, practical guide to its bid protest process.
Although the guide incorporates some protest regulations, protesters
must refer to the GAO Bid Protest Regulations for legal guidance.
--------------------------- Indexing Terms -----------------------------
REPORTNUM: OGC-95-27
TITLE: Bid Protests at GAO: A Descriptive Guide
DATE: 09/01/95
SUBJECT: Contract award protests
Bid rejection protests
Specifications protests
Federal procurement
Procurement protest procedures
Administrative remedies
Interested protesters
Bid protests reconsiderations
Statutory limitation
Agency reports
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Cover
================================================================ COVER
Office of General Counsel
Fifth Edition
1995
BID PROTESTS AT GAO:
A DESCRIPTIVE GUIDE
GAO/OGC-95-27
Bid Protests at GAO
Abbreviations
=============================================================== ABBREV
INTRODUCTION
============================================================ Chapter 0
The laws and regulations that govern contracting with the federal
government are designed to ensure that federal procurements are
conducted fairly and, whenever possible, in a way that maximizes
competition. On occasion, however, bidders or others interested in
government procurements may have reason to believe that a contract
has been or is about to be awarded improperly or illegally, or that
they have been unfairly denied a contract or an opportunity to
compete for a contract. A major avenue of relief for those concerned
about the propriety of an award has been the General Accounting
Office, which for almost 75 years has provided an objective,
independent, and impartial forum for the resolution of disputes
concerning the award of federal contracts.
Over the years, GAO has developed a substantial body of law and
standard procedures for considering bid protests. This is the fifth
edition of Bid Protests at GAO: A Descriptive Guide, prepared by the
Office of the General Counsel to aid those interested in GAO's bid
protest process. We issued the first edition of this booklet in 1975
to facilitate greater public familiarity with the bid protest process
at GAO and we have revised it over the years to reflect changes in
our bid protest procedures. This edition incorporates changes made
to our Bid Protest Regulations, effective October 1, 1995, to
implement the Federal Acquisition Streamlining Act of 1994 and to
streamline the bid protest process at GAO.
We have improved this edition of the booklet by providing practice
tips to assist parties participating in a bid protest at GAO. In
addition, we have added appendixes which contain a sample protective
order and sample applications for access to materials under a
protective order.
Robert P. Murphy
General Counsel
THE BID PROTEST PROCESS
============================================================ Chapter 1
BACKGROUND
---------------------------------------------------------- Chapter 1:1
For almost 75 years, GAO has provided an objective, independent, and
impartial forum for the resolution of disputes concerning the award
of federal contracts. Over the years, the decisions of the
Comptroller General of the United States, the head of GAO, in bid
protest cases have resulted in a uniform body of law applicable to
the procurement process that is relied upon by the Congress, the
courts, contracting agencies, and the public. Although protesters
may be represented by counsel, filing a bid protest with GAO is easy
and inexpensive and does not require the services of an attorney. In
addition, matters can usually be resolved more quickly by protests
filed with GAO than by court litigation.
This booklet is an informal, practical guide to the bid protest
process at GAO; however, it is not the law. The legal rules
governing this process are set forth in GAO's Bid Protest
Regulations. Since 1985, GAO has had detailed regulations to inform
protesters of the rules concerning where and how to file a protest,
what to expect in the way of subsequent actions, and the time frames
established for completion of those actions. These regulations were
promulgated to implement the Competition in Contracting Act of 1984
and were revised in response to the Federal Acquisition Streamlining
Act of 1994. The revised regulations will appear in Title 4 of the
Code of Federal Regulations (C.F.R.), Part 21, and are reproduced in
this booklet for ease of reference.
GAO changes its regulations from time to time because of changes in
applicable statutes, a binding court decision, or when experience
dictates that a modification is appropriate. These changes are
published in the Federal Register, and then incorporated into the
Code of Federal Regulations, which is published annually and reflects
the revisions or additions to the regulations that were published in
the Federal Register during the preceding year. Because the
regulations are published in the Federal Register, protesters and
other parties are held to have "constructive knowledge" of them,
meaning that they are expected to comply with the regulations, even
if they have never actually read the regulations.
In deciding bid protests, GAO considers whether federal agencies have
complied with statutes and regulations controlling government
procurements. The main statutes controlling federal procurements are
the Armed Services Procurement Act of 1947 and the Federal Property
and Administrative Services Act of 1949, as amended, particularly by
the Competition in Contracting Act of 1984 and the Federal
Acquisition Streamlining Act of 1994. These statutes are found in
the United States Code, titles 10 and 41, respectively, and are
implemented by the Federal Acquisition Regulation (FAR) and
individual agency regulations, as well as by the Federal Information
Resources Management Regulation, which governs the procurement of
automatic data processing and telecommunications needs. GAO's Bid
Protest Regulations govern GAO's handling of protests and impose
certain requirements on contracting agencies, protesters, and others
who participate in bid protests.
OVERVIEW OF THE BID PROTEST
PROCESS
---------------------------------------------------------- Chapter 1:2
The bid protest process at GAO begins with the filing of a written
protest. In response, the contracting agency is required to file an
agency report with GAO and to provide a copy of that report to the
protester. The protester then has an opportunity to file written
comments on the report. Other parties may be permitted to intervene,
which means that they will also receive a copy of the report and will
be allowed to file written comments on the report.
GAO may find that a hearing is necessary to gather additional facts
about a case. If it decides to hold a hearing, GAO will usually
conduct a pre-hearing conference to decide the issues that will be
considered at the hearing, to identify the witnesses, and to settle
procedural questions. After the hearing, all parties will be allowed
to submit written comments on the hearing.
After the record is complete, GAO will consider the facts and legal
issues raised and will issue a decision, a copy of which will be sent
to all the parties participating in the protest. GAO may sustain the
protest (that is, find that the agency violated a procurement statute
or regulation), in which case GAO will recommend appropriate
corrective action. Alternatively, GAO may deny the protest or
dismiss the protest without reviewing the matter. GAO will issue its
decision no later than 125 calendar days from the date the protest
was filed. (In these regulations, all "days" are calendar days.) The
exact date on which GAO issues the decision depends on the urgency of
the procurement, the complexity of the factual and legal issues in
the protest, and GAO's work load.
FILING A PROTEST
---------------------------------------------------------- Chapter 1:3
WHO MAY PROTEST
-------------------------------------------------------- Chapter 1:3.1
By law, a GAO protest must be filed by an "interested party," which
means an actual or prospective bidder or offeror with a direct
economic interest in the procurement. 4 C.F.R. � 21.0(a). In
challenges of the evaluation of proposals and the award of contracts,
this generally means an offeror that would potentially be in line for
award if the protest were sustained.
Although many parties retain an attorney in order to benefit from the
attorney's familiarity with GAO's bid protest process and with
procurement statutes and regulations, an attorney is not required for
purposes of filing a protest. However, where the record includes
another company's proprietary information or the agency's
source-selection-sensitive information, only attorneys (and then only
if the attorneys are admitted under a protective order, as discussed
below) will be allowed to see that information.
WHAT TO PROTEST
-------------------------------------------------------- Chapter 1:3.2
Although most protests challenge the acceptance or rejection of a bid
or proposal and the award or proposed award of a contract, GAO
considers protests of defective solicitations (e.g., allegedly
restrictive specifications, omission of a required provision, or
ambiguous or indefinite evaluation factors), as well as certain other
procurement actions (e.g., the cancellation of a solicitation). The
termination of a contract may be protested if the protest alleges
that the termination was based on improprieties in the award of the
contract. 4 C.F.R.
� 21.1(a). Where the agency involved has agreed in writing, GAO will
consider protests concerning (1) awards of subcontracts by or for a
federal agency, (2) sales by a federal agency, and (3) procurement
actions by government entities which do not fall within the strict
definition of federal agencies in
4 C.F.R. � 21.0(c). 4 C.F.R. � 21.13(a).
There are some matters that cannot be protested to GAO. The most
common grounds for dismissal of a protest in whole or in part are set
forth in 4 C.F.R.
� 21.5.
PREPARATION OF A PROTEST
-------------------------------------------------------- Chapter 1:3.3
There is no prescribed form for filing a protest, except that the
protest must be in writing. 4 C.F.R.
� 21.1(b). Protests of different procurements must be separately
filed. 4 C.F.R. � 21.1(f).
GAO does not require formal briefs or other technical forms of
pleadings. However, at a minimum, a protest shall:
(1) Include the name, address, and telephone and facsimile (fax)
numbers of the protester (or its representative, if any);
(2) Be signed by the protester or its representative;
(3) Identify the contracting agency and the solicitation and/or
contract number;
(4) Set forth a detailed statement of the legal and factual grounds
of protest, including copies of relevant documents;
(5) Set forth all information establishing that the protester is an
interested party for the purpose of filing a protest;
(6) Set forth all information establishing the timeliness of the
protest;
(7) Specifically request a ruling by the Comptroller General of the
United States; and
(8) State the form of relief requested. 4 C.F.R.
� 21.1(c).
In addition, a protest may include a request for a protective order,
specific documents relevant to the protest, and a hearing. 4 C.F.R.
� 21.1(d).
The protest document must be clearly labeled if it contains
information which the protester believes is proprietary,
confidential, or otherwise not releasable to the public. In those
cases, within 1 day after the filing of the unredacted protest with
GAO, the protester must provide a redacted version of the document
which omits such information to GAO and the contracting agency. 4
C.F.R. � 21.1(g).
A party may request that GAO decide a protest using an express option
or accelerated schedule. 4 C.F.R.
� 21.10(a) and (e).
WHEN TO PROTEST
-------------------------------------------------------- Chapter 1:3.4
The regulations set forth the timelinesss requirements for filing
protests at GAO. 4 C.F.R. � 21.2. Because bid protests may delay
the procurement of needed goods or services, GAO, except under
limited circumstances, strictly enforces these time limits.
Protests alleging improprieties in a solicitation must be filed prior
to bid opening or the time set for receipt of initial proposals if
the improprieties were apparent prior to that time. 4 C.F.R. �
21.2(a)(1). A solicitation defect that was not apparent before that
time must be protested no later than 14 days after the defect became
apparent. In negotiated procurements, if an alleged impropriety did
not exist in the initial solicitation but was later incorporated into
the solicitation by an amendment, a protest based on that impropriety
must be filed before the next closing time established for submitting
proposals. Id.
In all other cases, protests must be filed no later than 14 days
after the protester knew or should have known the basis of protest,
whichever is earlier.
4 C.F.R. � 21.2(a)(2). Because GAO generally enforces this rule
strictly, potential protesters should not delay filing a protest
simply to gather additional information from the agency if the delay
would mean that the protest would be filed more than 14 days after
the protester first learned the basis of protest.
Special timeliness rules govern protests initially filed with the
contracting agency. In those cases, the protest to GAO must be filed
no later than 14 days after the protester learned of "initial adverse
agency action." 4 C.F.R. � 21.2(a)(3). Deciding when adverse agency
action occurs is straightforward when the protester receives oral or
written notice that the agency is denying the agency-level protest.
Protesters should keep in mind, however, that GAO views any action
that makes clear that the agency is denying the agency-level protest
as adverse agency action. Examples of adverse agency action include
the agency's proceeding with bid opening or the receipt of proposals,
the rejection of a bid or proposal, or the award of a contract
despite the agency-level protest. Firms which have filed an
agency-level protest and are considering protesting to GAO should be
alert to any possible agency action that could be viewed as
indicating that the agency is denying the agency-level protest.
Even if the firm files a protest with GAO within
14 days of initial adverse agency action, GAO will consider the
protest untimely if the agency-level protest was not timely filed
(under GAO's timeliness rules, or under an agency's rules if those
rules are stricter). 4 C.F.R. � 21.1(a)(3). For example, if a firm
waits until after bid opening to file an agency-level protest of an
apparent solicitation impropriety, even if the subsequent protest to
GAO is filed within 14 days of the firm's learning that the agency
denied the agency-level protest, GAO will not consider a protest of
that impropriety.
GAO may consider an untimely protest where exceptional circumstances
beyond the protester's control caused the delay in filing the
protest, or where the protest presents novel or significant legal
issues of interest to the procurement community. 4 C.F.R.
� 21.2(c).
(See figure in printed
edition.)
WHERE TO SEND A PROTEST
-------------------------------------------------------- Chapter 1:3.5
Protests must be addressed to the General Counsel, General Accounting
Office, 441 G St., N.W., Washington, DC 20548, Attention:
Procurement Law Control Group. 4 C.F.R. � 21.1(b). GAO's office
hours are from 8:30 a.m. to 5:30 p.m., eastern time, Monday through
Friday.
Protests may be filed by hand delivery, mail, commercial carrier, or
fax. 4 C.F.R. � 21.0(g). Protests filed by hand delivery or
commercial carrier must be delivered to the window located in the G
Street lobby in GAO's main building at the above-referenced address.
Protesters filing their protests by fax should verify GAO's fax
number prior to transmission. GAO's current bid protest fax number
is (202) 512-9749. Fax users should take into account the risk that
GAO's receiving fax machine might be busy, particularly near the end
of the business day. GAO will time/date stamp a fax transmission as
of the time that the last page is received, which may affect the
timeliness of the entire submission. Additional recorded information
concerning the filing of protests at GAO may be obtained by calling
the Procurement Law Control Group at (202) 512-5282.
A copy of the protest, including all attachments, must be filed with
the individual or location identified for that purpose in a
solicitation, or with the contracting officer, within 1 day after the
protest is filed with GAO. 4 C.F.R. � 21.1(e).
INITIAL STEPS AFTER A PROTEST
IS FILED
---------------------------------------------------------- Chapter 1:4
ACKNOWLEDGMENT OF A PROTEST
-------------------------------------------------------- Chapter 1:4.1
Upon receipt of a protest, GAO generally mails the protester a
written notice acknowledging receipt of the protest. 4 C.F.R. �
21.3(a). The only instance in which an acknowledgment notice is not
sent is where the protest is summarily dismissed, in which case a
notice of dismissal will be furnished.
The acknowledgment notice includes important information. First, it
provides the file number by which GAO identifies the protest. That
number consists of a letter followed by six digits (e.g., B-123456).
Second, the notice contains the date on which the contracting
agency's response to the protest, the agency report, is due. The
notice warns that GAO will assume that the protester receives the
report on that date and may dismiss the protest if the protester's
written comments in response to the report are not received by GAO
within 14 days of that date. Third, the notice contains the date by
which a written decision will be issued by GAO.
Finally, the acknowledgment notice identifies the GAO attorney or the
GAO contact person handling the protest and that individual's
telephone number. That individual is the GAO employee who should
generally be contacted with any procedural questions about the
protest. Inquiries about the status of the case may be directed to
GAO's bid protest status line at (202) 512-5436. This telephone
number also appears on the notice.
CONFIRMATION OF REPORT
REQUIREMENT
-------------------------------------------------------- Chapter 1:4.2
Within 1 day of receipt of the protest, GAO will telephone the
contracting agency to advise it that a protest has been filed. 4
C.F.R. � 21.3(a). That telephone call is important because it is
the official notice that may trigger a statutorily imposed delay in
award or of performance of a contract pending GAO's decision. For
this reason, protesters should file their protests sufficiently in
advance of the expiration of the statutory period after award or
after a statutorily required debriefing to allow GAO time to notify
the agency that a protest has been filed for purposes of triggering
the statutorily imposed delay. GAO follows up the telephone notice
with a written confirmation of report requirement which includes
essentially the same information provided to the protester in the
acknowledgment notice.
(See figure in printed
edition.)
(See figure in printed
edition.)
INTERVENORS
-------------------------------------------------------- Chapter 1:4.3
Immediately after receiving notice of the protest from GAO, the
contracting agency must give notice of the protest to the contractor
if an award has been made or, if no award has been made, the agency
must notify all bidders or offerors which have a reasonable chance of
receiving an award. GAO may permit other firms to participate in the
protest as "intervenors."
4 C.F.R. � 21.0(b). If the award has been made, GAO permits only
the awardee to intervene. If the award has not been made, firms
wishing to intervene should so advise GAO and the other parties, and
then contact GAO to learn whether they will be permitted to
intervene. The notice of intervention can be a brief letter which
includes the name, address, and telephone and fax numbers of the
intervenor or its representative, if any, and which advises GAO and
all other parties of the intervenor's status.
SUMMARY DISMISSAL
-------------------------------------------------------- Chapter 1:4.4
If a protest is summarily dismissed, GAO will not review the merits
of the protest. 4 C.F.R. � 21.5. For example, if the protest is
untimely on its face or if it raises issues that GAO does not
consider (such as the awardee's business size status), GAO will
dismiss it without requiring the contracting agency to submit a
report. GAO may also summarily dismiss individual grounds of
protest. Id. For example, if a protest alleges that a solicitation
uses overly restrictive technical specifications and uses the
incorrect definition of a small business, GAO may dismiss the latter
ground (which is for consideration by the Small Business
Administration, not GAO), but request an agency report on the
remaining ground.
As a general rule, GAO will dismiss a protest that fails to set forth
a detailed statement of the legal and factual grounds of protest or
that fails to clearly state legally sufficient grounds of protest. 4
C.F.R. � 21.5(f), citing 4 C.F.R. � 21.1(c)(4) and 4 C.F.R. �
21.1(f), respectively.
Once it receives the protest, the contracting agency and/or an
intervenor may request that GAO summarily dismiss the protest or some
of its grounds. 4 C.F.R.
� 21.3(b). Where summary dismissal may be appropriate, the request
for dismissal should be made as soon as practicable after the protest
is filed. Id. The request should be in writing and sent to all
parties. Unless it is clear that dismissal is appropriate, GAO will
generally permit the protester to file a written response to the
dismissal request. If the request for dismissal is received by GAO
soon after the protest is filed, GAO may grant the request without
requiring the agency to prepare a report in response to the protest.
PROTECTIVE ORDERS
-------------------------------------------------------- Chapter 1:4.5
If the record in a protest contains "protected" information, that is,
a company's proprietary or confidential data or the agency's
source-selection-sensitive information, that information cannot be
made public. In order to allow limited access to protected
information relevant to a protest, GAO may issue a protective order.
4 C.F.R.
� 21.4. The protective order strictly controls who has access to
protected material and how that material is labeled, distributed,
stored, and disposed of at the conclusion of the protest. GAO will
send out applications for access to materials under a protective
order at the same time it issues the protective order.
Only individuals who apply to GAO, and whose applications are
approved by GAO, will be permitted access to protected information.
Those individuals must be attorneys or consultants retained by
attorneys; the attorneys may be outside or in-house counsel. The
applicants need to show that they are not involved in competitive
decisionmaking for any company that could gain a competitive
advantage from access to the protected information and that there
will be no significant risk of inadvertent disclosure of the
information. 4 C.F.R. � 21.4(c). Individuals permitted access to
the protected information will not be allowed to disclose it to
others. This means, for example, that a protester's attorney
permitted access to protected information under a protective order is
prohibited from revealing such information to the client. GAO may
impose sanctions on any individual who violates a protective order.
4 C.F.R. � 21.4(d).
The information released under the protective order is not GAO's, but
rather the contracting agency's or one of the private parties. For
this reason, GAO relies on these parties to carefully review
applications for access to materials under a protective order and to
call to GAO's attention any potential violation of a protective
order. If no party objects to an individual's application, GAO will
generally admit the applicant to the protective order. It is
important that any objections to an individual's application be
promptly raised. By the end of the second day after receiving the
application, the objecting party must advise GAO and the other
parties that there is an objection to the applicant's admission. 4
C.F.R. � 21.4(c). The GAO attorney will generally permit the
objecting party to submit the specific objection, which should be in
writing, the next day. Even after the 2 days have passed, GAO may
withhold its ruling on an application (or revoke an admission) if
information comes to light which indicates that the applicant does
not meet the criteria for admission.
A sample protective order, as well as sample applications for access
to materials under a protective order for outside counsel, in-house
counsel, and consultants retained by counsel, are reproduced in the
appendixes to this booklet. These sample documents are provided for
informational purposes only and are subject to change.
(See figure in printed
edition.)
AGENCY REPORT
-------------------------------------------------------- Chapter 1:4.6
The contracting agency is to provide GAO, the protester, and any
intervenors a complete report responding to the protest, including
all relevant documents and an explanation of the agency's position.
The agency report is the agency's written response to the protest and
must be provided within 35 days after it receives telephonic notice
of the protest from GAO. 4 C.F.R. � 21.3(c). The report generally
includes a statement of the relevant facts signed by the contracting
officer, a memorandum of law explaining the agency's position in
terms of procurement law, and an index and a copy of all relevant
documents. Id.
The agency report filed with GAO is to be sent to the protester and
any intervenors. The agency may omit documents, or parts of
documents, from the copy of the report provided to these parties if
the omitted information is protected and the party receiving the
report is not represented by counsel admitted to the protective
order. 4 C.F.R. � 21.3(d). Where the protester is proceeding
without counsel admitted to the protective order and documents are
withheld, it is important that the protester receive sufficient
information to make the agency's position clear, so that the
protester may comment intelligently on the report.
Occasionally, the agency may be aware of the existence of relevant
documents that only the protester possesses. In appropriate cases,
the agency may request that the protester produce those documents. 4
C.F.R. 21.3(c). If GAO agrees that the documents are relevant, it
may ask the protester to provide a copy of the documents to GAO and
the other parties.
ADDITIONAL DOCUMENT REQUESTS
-------------------------------------------------------- Chapter 1:4.7
If a protester learns of the existence or relevance of additional
documents that it believes GAO needs to consider in deciding the
protest, it may request the production of those documents by filing a
supplemental document request. 4 C.F.R. � 21.3(f). Typically, this
arises where the protester, in reading the agency report, sees
references to documents that the agency relies on in support of its
position, but has not produced. A protester seeking the production
of additional documents should submit a written request for those
documents to GAO and the other parties within 2 days after the
existence or relevance of the documents is known or should have been
known, whichever is earlier. Id. The agency should respond to the
request promptly (and in any event, no later than
5 days after receiving the request), by either producing the
documents or explaining why the documents are not being produced.
Id.
COMMENTS ON THE AGENCY
REPORT
-------------------------------------------------------- Chapter 1:4.8
The protester and any intervenors may file written comments on the
agency report. 4 C.F.R. � 21.3(h). Comments generally are due at
GAO within 14 days after receipt of the report. Id. GAO will assume
that the protester received the report no later than the due date
specified in the acknowledgment notice furnished by GAO, unless
otherwise advised by the protester. Id. Comments themselves should
be sent to all parties, as well as to GAO. Copies of comments should
be received by the other parties no later than the day after the
comments are received at GAO.
If the contracting agency produces withheld documents at the
direction of GAO after the report has been submitted, comments will
be due 10 days after receipt of these documents, unless otherwise
specified by GAO. 4 C.F.R. � 21.3(g).
Failure of the protester to file comments, request that the case be
decided on the existing written record, or request an extension of
time within the 14-day period will result in dismissal of the
protest. 4 C.F.R.
� 21.3(h).
(See figure in printed
edition.)
EX PARTE COMMUNICATIONS
---------------------------------------------------------- Chapter 1:5
Parties should not attempt to engage in ex parte communications with
the GAO attorney assigned to the protest, or with any other GAO
employee. An ex parte communication refers to any oral or written
communication with a GAO official, which excludes one or more parties
to a protest, about the merits of the protest, or about significant
issues which might affect the outcome of the protest. Although it
may be necessary during the proceedings to clarify a fact in the
record or to explain in greater detail a party's position in the
case, GAO will not entertain, and no one may submit to GAO, off the
record, any evidence, explanation, analysis, or advice, whether
written or oral, regarding any substantive matter affecting the
disposition of the protest. Where it is necessary to discuss any
substantive issue with GAO, a telephone conference should be
requested. A copy of all written submissions to GAO, redacted where
necessary, should be provided to all parties to the protest.
HEARINGS
---------------------------------------------------------- Chapter 1:6
At the request of a party or on its own initiative, GAO may conduct a
hearing where it concludes that the protest cannot otherwise be
resolved on the written record alone. 4 C.F.R. � 21.7(a).
Hearings increase the cost and burden of protests and GAO therefore
holds hearings only when necessary.
A request for a hearing should explain why one is necessary, and
point out, for example, factual and legal questions that GAO must
resolve to decide the protest. GAO has issued several decisions
which discuss reasons for holding hearings. While the regulations do
not establish a deadline for requesting a hearing, a request should
be submitted as early as possible in the protest process in order to
avoid unnecessary delays and disruption. On the other hand, the need
for a hearing is often not clear until after the contracting agency
has filed its report and, in many cases, not until the protester has
submitted its comments on the report.
Where GAO decides to hold a hearing, it will generally conduct a
pre-hearing conference with all the parties. 4 C.F.R. � 21.7(b).
The purpose of that conference is to review the scope of the hearing,
identify the appropriate witnesses and their availability, establish
the date and location of the hearing, and discuss other logistical
matters. Where GAO determines that only some of the protest issues
require a hearing, the hearing will generally be limited to those
issues. The GAO attorney handling the protest will conduct both the
pre-hearing conference and the hearing. The format of hearings
varies from formal (direct- and cross-examination of witnesses
conducted by counsel for the parties) to informal (a discussion of
the issues by counsel and others). For this reason, the pre-hearing
conference is usually the best opportunity to clarify how the GAO
attorney expects to conduct the hearing, as well as to raise any
other questions about the hearing.
A GAO hearing is, in principle, open to the public.
In practice, however, protest hearings often involve protected
information. As a result, most hearings are closed except to agency
personnel and those individuals admitted to the protective order.
The GAO hearing room is equipped with video cameras and microphones
which automatically record the proceedings. That system produces a
video transcript, a copy of which is provided to the parties at no
charge at the conclusion of the hearing. In addition, parties may
wish to have a court reporter attend the hearing to prepare a written
transcript. A request to that effect should be presented before the
day of the hearing to the GAO attorney handling the case. Such a
request will usually be granted as long as all parties have access to
a written transcript.
If a hearing is held, all parties, including the agency, will be
permitted to file written comments on the hearing. 4 C.F.R. �
21.7(g). Those comments are due
7 days after the hearing ends, unless GAO sets a different date. Id.
If GAO decides to hold a hearing before receipt of comments on the
agency report, GAO may direct the private parties not to submit
separate comments on the report, but to include their views on the
report in their comments on the hearing. Id.
DECISION TIMETABLE
---------------------------------------------------------- Chapter 1:7
Once the record is complete, GAO will consider the protest and decide
the case through a written decision issued by the Comptroller
General. At the latest, the decision will be issued 125 days after
the protest is filed, unless GAO decides the case under the 65-day
express option schedule. 4 C.F.R. � 21.9(a) and (b). If a
protester has filed a supplemental (or amended) protest, GAO will
endeavor to resolve the supplemental protest within the 125-day time
frame for the initial protest. If that is not feasible, GAO may
consider using the express option schedule for the supplemental
protest. 4 C.F.R. � 21.9(c).
EXPRESS OPTION
-------------------------------------------------------- Chapter 1:7.1
GAO may decide at the request of a party or on its own initiative
that a protest can be resolved under an expedited schedule, referred
to as the "express option." 4 C.F.R. � 21.10(a). A party requesting
that GAO decide the case on this basis should submit a written
request to that effect no later than 3 days after the protest is
filed. 4 C.F.R. � 21.10(c).
Under the express option schedule, the agency report is due within 20
days after the contracting agency receives notice from GAO that the
express option will be used. 4 C.F.R. � 21.10(d)(1). Comments on
the report generally are due within 7 days after receipt of the
report. 4 C.F.R. � 21.10(d)(2). If a hearing is needed, GAO will
set a schedule for post-hearing comments. 4 C.F.R. � 21.10(d)(3).
Under the express option schedule, GAO's decision will be issued no
later than 65 days after the protest is filed. 4 C.F.R.
�� 21.9(b), 21.10(b). GAO may decide at any time that the express
option is no longer appropriate, and may set a different schedule for
the protest, which will not exceed the time frame (125 days) for
deciding a non-express option case.
ACCELERATED SCHEDULE AND
SUMMARY DECISION
-------------------------------------------------------- Chapter 1:7.2
Notwithstanding any other provision in these regulations, at the
request of a party or on its own initiative, GAO may resolve any
protest using an accelerated schedule and/or may issue a summary
decision for any protest. This provision is intended to provide a
flexible, accelerated protest resolution procedure at GAO which will
minimize any disruption to the procurement process.
PROTEST DISPOSITION
---------------------------------------------------------- Chapter 1:8
GAO will either dismiss, deny, or sustain the protest. GAO generally
sustains protests where it determines that the contracting agency
violated procurement statutes or regulations, unless it concludes
that the violation did not prejudice the protester. Where a protest
is sustained, GAO will recommend appropriate corrective action. In
fashioning its recommendation, GAO will take into account the
circumstances of the procurement, such as the agency's stated need
for the goods or services at issue, the extent performance has been
completed (in post-award protests in which performance has not been
stayed), and similar factors. In appropriate circumstances, GAO will
recommend termination of an improper award or, where this is not
feasible, that the agency not exercise any renewal options in the
improperly awarded contract. 4 C.F.R. � 21.8(a) and (b).
If the protest is sustained, GAO will recommend that the protester be
reimbursed for the cost of filing and pursuing the protest, including
attorneys' fees and consultant and expert witness fees.
Occasionally, where there is no other relief available, GAO will
recommend that the protester also be reimbursed for the cost of
preparing its bid or proposal. 4 C.F.R.
� 21.8(d).
Where GAO has recommended reimbursement of costs, the protester must
submit a detailed claim for costs, certifying the time expended and
costs incurred in pursuing the protest, directly to the contracting
agency within 90 days after receipt of GAO's recommendation that the
agency pay these costs.
4 C.F.R. � 21.8(f)(1). GAO expects the protester and the agency to
determine the exact amount to be paid.
If the protester and the agency cannot agree, GAO may, upon request
of the protester, decide the matter. 4 C.F.R. � 21.8(f)(2).
Protesters should keep in mind that, except in very limited
circumstances, the costs for attorneys' fees may not exceed $150 per
hour. GAO never recommends that agencies pay lost profits or other
common-law damages.
When GAO recommends corrective action, the Competition in Contracting
Act of 1984 requires the agencies affected to report to the
Comptroller General whenever they have not fully implemented the
recommendation within 60 days. The Comptroller General, in turn,
annually reports to the Congress each instance where recommendations
were not fully implemented.
(See figure in printed
edition.)
JUDICIAL PROCEEDINGS
---------------------------------------------------------- Chapter 1:9
A protester must immediately advise GAO of any court proceeding which
involves the subject matter of a pending protest and must file with
GAO copies of all relevant court documents. 4 C.F.R. � 21.11(a).
GAO will not consider a protest where the matter involved is the
subject of litigation in court. 4 C.F.R. � 21.11(b). For example,
if a party files a protest with GAO concerning the award of a
contract, and thereafter files a complaint in court also challenging
the award, GAO will dismiss the protest. However, at the request of
the court, GAO may review the protest and issue an advisory opinion
or a decision for the court's consideration. Id. In such a case,
the time frames for filing the agency report, filing comments on the
report, conducting a hearing and filing comments, and issuing a
decision may be modified to respond promptly to the court's request.
Id.
GAO also will not review a protest where the issues involved have
already been decided on the merits by a court. Id.
REQUESTS FOR RECONSIDERATION
--------------------------------------------------------- Chapter 1:10
Any party who participated in the protest, including the protester,
any intervenor, and the contracting agency, may request that GAO
reconsider its decision in the protest. 4 C.F.R. � 21.14(a). A
request for reconsideration does not result in the withholding of
award or the suspension of contract performance.
4 C.F.R. � 21.14(c).
GAO must receive the request for reconsideration within 14 days after
the basis of reconsideration is known or should have been known,
whichever is earlier. 4 C.F.R. � 21.14(b). The request must
identify the alleged factual or legal error in the decision.
4 C.F.R. � 21.14(a). GAO will not consider a request which merely
repeats the party's views already expressed in the protest; a request
which simply expresses disagreement with the decision; or a request
which provides information or raises an argument that could have
been, but was not, provided or raised during the protest.
BID PROTEST REGULATIONS
============================================================ Chapter 2
The regulations governing the bid protest process appear in Part 21
of Title 4 of the Code of Federal Regulations. Those regulations, as
in effect on October 1, 1995, are reprinted below.
� 21.0 DEFINITIONS.
------------------------------------------------------ Chapter 2:0.0.1
(a) Interested party means an actual or prospective bidder or offeror
whose direct economic interest would be affected by the award of a
contract or by the failure to award a contract.
(b) Intervenor means an awardee if the award has been made or, if no
award has been made, all bidders or offerors who appear to have a
substantial prospect of receiving an award if the protest is denied.
(c) Federal agency means any executive department or independent
establishment in the executive branch, including any wholly owned
government corporation, and any establishment in the legislative or
judicial branch, except the Senate, the House of Representatives and
the Architect of the Capitol and any activities under his direction.
(d) Contracting agency means a Federal agency which has awarded or
proposes to award a contract under a protested procurement.
(e) Days are calendar days. In computing a period of time for the
purpose of this part, 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 General
Accounting Office (GAO), or another Federal agency where a submission
is due, is closed for all or part of the last day, the period extends
to the next day on which the agency is open.
(f) Adverse agency action is any action or inaction by a contracting
agency which is prejudicial to the position taken in a protest filed
with the agency, including a decision on the merits of a protest; the
opening of bids or receipt of proposals, the award of a contract, or
the rejection of a bid despite a pending protest; or contracting
agency acquiescence in continued and substantial contract
performance.
(g) A document is filed on a particular day when it is received by
GAO by 5:30 p.m., eastern time, on that day. A document may be filed
by hand delivery, mail, or commercial carrier; parties wishing to
file a document by facsimile transmission or other electronic means
must ensure that the necessary equipment is operational at GAO's
Procurement Law Control Group.
� 21.1 FILING A PROTEST.
------------------------------------------------------ Chapter 2:0.0.2
(a) An interested party may protest a solicitation or other request
by a Federal agency for offers for a contract for the procurement of
property or services; the cancellation of such a solicitation or
other request; an award or proposed award of such a contract; and a
termination of such a contract, if the protest alleges that the
termination was based on improprieties in the award of the contract.
(b) Protests must be in writing and addressed as follows: General
Counsel, General Accounting Office, 441 G Street, NW., Washington, DC
20548, Attention: Procurement Law Control Group.
(c) A protest filed with GAO shall:
(1) Include the name, address, and telephone and facsimile numbers of
the protester,
(2) Be signed by the protester or its representative,
(3) Identify the contracting agency and the solicitation and/or
contract number,
(4) Set forth a detailed statement of the legal and factual grounds
of protest including copies of relevant documents,
(5) Set forth all information establishing that the protester is an
interested party for the purpose of filing a protest,
(6) Set forth all information establishing the timeliness of the
protest,
(7) Specifically request a ruling by the Comptroller General of the
United States, and
(8) State the form of relief requested.
(d) In addition, a protest filed with GAO may:
(1) Request a protective order,
(2) Request specific documents relevant to the protest grounds, and
(3) Request a hearing.
(e) The protester shall furnish a complete copy of the protest,
including all attachments, to the individual or location designated
by the contracting agency in the solicitation for receipt of
protests, or if there is no designation, to the contracting officer.
The designated individual or location (or, if applicable, the
contracting officer) must receive a complete copy of the protest and
all attachments no later than 1 day after the protest is filed with
GAO. The protest document must indicate that a complete copy of the
protest and all attachments are being furnished within 1 day to the
appropriate individual or location.
(f) No formal briefs or other technical forms of pleading or motion
are required. Protest submissions should be concise and logically
arranged, and should clearly state legally sufficient grounds of
protest. Protests of different procurements should be separately
filed.
(g) Unless precluded by law, GAO will not withhold material submitted
by a protester from any party outside the government. If the
protester believes that the protest contains information which should
be withheld, a statement advising of this fact must be on the front
page of the submission. This information must be identified wherever
it appears, and the protester must file, within 1 day after the
filing of its protest with GAO, a redacted copy of the protest which
omits the information.
(h) Parties who intend to file documents containing classified
information should notify GAO in advance to obtain advice regarding
procedures for filing and handling the information.
(i) A protest may be dismissed for failure to comply with any of the
requirements of this section, except for the items in paragraph (d)
of this section. In addition, a protest shall not be dismissed for
failure to comply with paragraph (e) of this section where the
contracting officer has actual knowledge of the basis of protest, or
the agency, in the preparation of its report, was not prejudiced by
the protester's noncompliance.
� 21.2 TIME FOR FILING.
------------------------------------------------------ Chapter 2:0.0.3
(a)(1) Protests based upon alleged improprieties in a solicitation
which are apparent prior to bid opening or the time set for receipt
of initial proposals shall be filed prior to bid opening or the time
set for receipt of initial proposals. In procurements where
proposals are requested, alleged improprieties which do not exist in
the initial solicitation but which are subsequently incorporated into
the solicitation must be protested not later than the next closing
time for receipt of proposals following the incorporation.
(2) In cases other than those covered in paragraph (a)(1) of this
section, protests shall be filed not later than 14 days after the
basis of protest is known or should have been known, whichever is
earlier.
(3) If a timely agency-level protest was previously filed, any
subsequent protest to GAO filed within
14 days of actual or constructive knowledge of initial adverse agency
action will be considered, provided the agency-level protest was
filed in accordance with paragraphs (a)(1) and (a)(2) of this
section, unless the contracting agency imposes a more stringent time
for filing, in which case the agency's time for filing will control.
In cases where an alleged impropriety in a solicitation is timely
protested to a contracting agency, any subsequent protest to GAO will
be considered timely if filed within the 14-day period provided by
this paragraph, even if filed after bid opening or the closing time
for receipt of proposals.
(b) Protests untimely on their face may be dismissed. A protester
shall include in its protest all information establishing the
timeliness of the protest; a protester will not be permitted to
introduce for the first time in a request for reconsideration
information necessary to establish that the protest was timely.
(c) GAO, for good cause shown, or where it determines that a protest
raises issues significant to the procurement system, may consider an
untimely protest.
� 21.3 NOTICE OF PROTEST,
SUBMISSION OF AGENCY
REPORT, AND TIME FOR
FILING OF COMMENTS ON
REPORT.
------------------------------------------------------ Chapter 2:0.0.4
(a) GAO shall notify the contracting agency by telephone within 1 day
after the filing of a protest, and, unless the protest is dismissed
under this part, shall promptly send a written confirmation to the
contracting agency and an acknowledgment to the protester. The
contracting agency shall immediately give notice of the protest to
the contractor if award has been made or, if no award has been made,
to all bidders or offerors who appear to have a reasonable prospect
of receiving an award. The contracting agency shall furnish 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 furnish
copies of all protest communications to the contracting agency and to
other participating parties. All protest communications shall be
sent by means reasonably calculated to effect timely delivery.
(b) A contracting agency or intervenor which believes that the
protest or specific protest allegations should be dismissed before
submission of an agency report should file a request for dismissal as
soon as practicable.
(c) The contracting agency shall file a report on the protest with
GAO within 35 days after the telephone notice of the protest from
GAO. The report shall include the contracting officer's statement of
the relevant facts, a memorandum of law, and an index and a copy of
all relevant documents including, as appropriate: the protest; 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 or portions relevant to
the protest; the abstract of bids or offers or relevant portions; and
any other relevant documents. The contracting agency shall provide
any additional documents requested in the protest or explain why it
is not required to produce the documents. In appropriate cases, the
contracting agency may request that the protester produce relevant
documents that are not in the agency's possession.
(d) Subject to any protective order issued in the protest pursuant to
� 21.4, the contracting agency shall simultaneously furnish a copy of
the report to the protester and any intervenors. The copy of the
report filed with GAO shall list the parties who have been furnished
copies of the report and shall identify in an index any documents, or
portions of documents, withheld from any party and the reason for the
withholding. Where a protester does not have counsel admitted to a
protective order and documents are withheld from the protester in
accordance with this part, the agency shall provide documents
adequate to inform the protester of the basis of the agency's
position.
(e) The contracting agency may request an extension of time for the
submission of the agency report. Extensions will be granted on a
case-by-case basis.
(f) The protester may request additional documents when their
existence or relevance first becomes evident. Except when authorized
by GAO, any request for additional documents must be filed with GAO
and the contracting agency not later than 2 days after their
existence or relevance is known or should have been known, whichever
is earlier. The contracting agency shall provide the requested
documents and an index to GAO and the other parties within 5 days or
explain why it is not required to produce the documents.
(g) Upon the request of a party, GAO will decide whether the
contracting agency must provide any withheld documents and whether
this should be done under a protective order. When withheld
documents are provided, the protester's comments on the agency report
shall be filed within 10 days after its receipt of the documents,
unless otherwise specified by GAO.
(h) Comments on the agency report shall be filed with GAO within 14
days after receipt of the report, with a copy provided to the
contracting agency and other participating parties. The protest
shall be dismissed unless the protester files comments or a written
statement requesting that the case be decided on the existing record,
or requests an extension of time within the 14-day period. Unless
otherwise advised by the protester, GAO will assume the protester
received the agency report by the due date specified in the
acknowledgment of protest furnished by GAO. Upon a showing that the
specific circumstances of a protest require a period longer than 14
days for the submission of comments, GAO will set a new date for the
submission of comments. Extensions will be granted on a case-by-case
basis.
(i) GAO may permit or request the submission of additional statements
by the parties and by other parties not participating in the protest
as may be necessary for the fair resolution of the protest.
� 21.4 PROTECTIVE ORDERS.
------------------------------------------------------ Chapter 2:0.0.5
(a) At the request of a party or on its own initiative, GAO may issue
a protective order controlling the treatment of protected
information. Such information may include proprietary, confidential,
or source-selection-sensitive material, as well as other information
the release of which could result in a competitive advantage to one
or more firms. The protective order shall establish procedures for
application for access to protected information, identification and
safeguarding of that information, and submission of redacted copies
of documents omitting protected information. Because a protective
order serves to facilitate the pursuit of a protest by a protester
through counsel, it is, in the first instance, the responsibility of
protester's counsel to request that a protective order be issued and
to submit timely applications for admission under that order.
(b) If no protective order has been issued, the agency may withhold
from the parties those portions of its report which would ordinarily
be subject to a protective order. GAO will review in camera all
information not released to the parties.
(c) 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 submitting an application to GAO, with
copies furnished simultaneously to all parties. The application
shall establish that the applicant is not involved in competitive
decisionmaking for any firm that could gain a competitive advantage
from access to the protected information and that there will be no
significant risk of inadvertent disclosure of protected information.
Objections to an applicant's admission shall be raised within 2 days
after receipt of the application, although GAO may consider
objections raised after that time.
(d) Any violation of the terms of a protective order may result in
the imposition of sanctions as GAO deems appropriate, including
referral to appropriate bar associations or other disciplinary bodies
and restricting the individual's practice before GAO.
� 21.5 PROTEST ISSUES NOT
FOR CONSIDERATION.
------------------------------------------------------ Chapter 2:0.0.6
GAO shall summarily dismiss a protest or specific protest allegations
that do not state a valid basis for protest, are untimely (unless
considered pursuant to
� 21.2(c)), or are not properly before GAO. A protest or specific
protest allegations may be dismissed any time sufficient information
is obtained by GAO warranting dismissal. Where an entire protest is
dismissed, no agency report shall be filed; where specific protest
allegations are dismissed, an agency report shall be filed on the
remaining allegations. Among the protest bases which shall be
dismissed are the following:
(a) Contract administration. The administration of an existing
contract is within the discretion of the contracting agency.
Disputes between a contractor and the agency are resolved pursuant to
the disputes clause of the contract and the Contract Disputes Act of
1978. 41 U.S.C. 601�613.
(b) Small Business Administration issues.--
(1) Small business size standards and standard industrial
classification. Challenges of established size standards or the size
status of particular firms, and challenges of the selected standard
industrial classification may be reviewed solely by the Small
Business Administration. 15 U.S.C. 637(b)(6).
(2) Small Business Certificate of Competency Program. Any referral
made to the Small Business Administration pursuant to sec. 8(b)(7)
of the Small Business Act, or any issuance of, or refusal to issue, a
certificate of competency under that section will not be reviewed by
GAO absent a showing of possible bad faith on the part of government
officials or a failure to consider vital information bearing on the
firm's responsibility. 15 U.S.C. 637(b)(7).
(3) Procurements under sec. 8(a) of the Small Business Act. Under
that section, since contracts are entered into with the Small
Business Administration at the contracting officer's discretion and
on such terms as are agreed upon by the procuring agency and the
Small Business Administration, 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).
(c) Affirmative determination of responsibility by the contracting
officer. Because the determination that a bidder or offeror is
capable of performing a contract is based in large measure on
subjective judgments which generally are not readily susceptible of
reasoned review, an affirmative determination of responsibility will
not be reviewed absent a showing of possible bad faith on the part of
government officials or that definitive responsibility criteria in
the solicitation were not met.
(d) Procurement protested to the General Services Administration
Board of Contract Appeals. Interested parties may protest a
procurement or proposed procurement of automated data processing
equipment and services to the General Services Administration Board
of Contract Appeals. After a protest to the Board, the same
procurement generally may not be the subject of a protest to GAO. 40
U.S.C. 759(f).
(e) Protests not filed either in GAO or the contracting agency within
the time limits set forth in � 21.2.
(f) Protests which lack a detailed statement of the legal and factual
grounds of protest as required by
� 21.1(c)(4), or which fail to clearly state legally sufficient
grounds of protest as required by � 21.1(f).
(g) Procurements by agencies other than Federal agencies as defined
by sec. 3 of the Federal Property and Administrative Services Act of
1949, 40 U.S.C. 472. Protests of procurements or proposed
procurements by agencies such as the U.S. Postal Service, the
Federal Deposit Insurance Corporation, and nonappropriated fund
activities are beyond GAO's bid protest jurisdiction as established
in
31 U.S.C. 3551�3556.
(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 requested in writing that subcontract
protests be decided pursuant to � 21.13.
� 21.6 WITHHOLDING OF
AWARD AND SUSPENSION OF
CONTRACT PERFORMANCE.
------------------------------------------------------ Chapter 2:0.0.7
Where a protest is filed with GAO, the contracting 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) and
are implemented by 48 CFR
part 33.
� 21.7 HEARINGS.
------------------------------------------------------ Chapter 2:0.0.8
(a) At the request of a party or on its own initiative, GAO may
conduct a hearing in connection with a protest. The request shall
set forth the reasons why a hearing is needed.
(b) Prior to the hearing, GAO may hold a pre-hearing conference to
discuss and resolve matters such as the procedures to be followed,
the issues to be considered, and the witnesses who will testify.
(c) Hearings generally will be conducted as soon as practicable after
receipt by the parties of the agency report and relevant documents.
Although hearings ordinarily will be conducted at GAO in Washington,
DC, hearings may, at the discretion of GAO, be conducted at other
locations.
(d) All parties participating in the protest shall be invited to
attend the hearing. Others may be permitted to attend as observers
and may participate as allowed by GAO's hearing official. In order
to prevent the improper disclosure of protected information at the
hearing, GAO's hearing official may restrict attendance during all or
part of the proceeding.
(e) Hearings shall normally be recorded and/or transcribed. If a
recording and/or transcript is made, any party may obtain copies at
its own expense.
(f) If a witness whose attendance has been requested by GAO fails to
attend the hearing or fails to answer a relevant question, GAO may
draw an inference unfavorable to the party for whom the witness would
have testified.
(g) If a hearing is held, no separate comments on the agency report
should be submitted unless specifically requested by GAO. Each party
shall file with GAO, within 7 days after the hearing was held or as
specified by GAO, a single document expressing any comments on both
the hearing and agency report, with copies furnished to the other
parties. By the due date, if the protester has not filed comments or
a written statement requesting that the case be decided on the
existing record, GAO shall dismiss the protest.
(h) In post-hearing comments, the parties should reference all
testimony and admissions in the hearing record that they consider
relevant, providing specific citations to the testimony and
admissions referenced.
� 21.8 REMEDIES.
------------------------------------------------------ Chapter 2:0.0.9
(a) If GAO determines that a solicitation, cancellation of a
solicitation, termination of a contract, proposed award, or award
does not comply with statute or regulation, it shall recommend that
the contracting agency implement any combination of the following
remedies:
(1) Refrain from exercising options under the contract;
(2) Terminate the contract;
(3) Recompete the contract;
(4) Issue a new solicitation;
(5) Award a contract consistent with statute and regulation; or
(6) Such other recommendation(s) as GAO determines necessary to
promote compliance.
(b) In determining the appropriate recommendation(s), GAO shall,
except as specified in paragraph (c) of this section, consider all
circumstances surrounding the procurement or proposed procurement
including the seriousness of the procurement deficiency, the degree
of prejudice to other parties or to the integrity of the competitive
procurement system, the good faith of the parties, the extent of
performance, the cost to the government, the urgency of the
procurement, and the impact of the recommendation(s) on the
contracting agency's mission.
(c) If the head of the procuring activity determines that performance
of the contract notwithstanding a pending protest is in the
government's best interest, GAO shall make its recommendation(s)
under paragraph (a) of this section without regard to any cost or
disruption from terminating, recompeting, or reawarding the contract.
(d) If GAO determines that a solicitation, proposed award, or award
does not comply with statute or regulation, it may recommend that the
contracting agency pay the protester the costs of:
(1) Filing and pursuing the protest, including attorneys' fees and
consultant and expert witness fees; and
(2) Bid and proposal preparation.
(e) If the contracting agency decides to take corrective action in
response to a protest, GAO may recommend that the agency pay the
protester the 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 within 14 days after being advised that the contracting agency
has decided to take corrective action. The protester shall furnish a
copy of its request to the contracting agency, which may file a
response within 14 days after receipt of the request, with a copy
furnished to the protester.
(f)(1) If GAO recommends that the contracting agency pay the
protester the costs of filing and pursuing the protest and/or of bid
or proposal preparation, the protester and the agency shall attempt
to reach agreement on the amount of costs. The protester shall file
its claim for costs, detailing and certifying the time expended and
costs incurred, with the contracting agency within 90 days after
receipt of GAO's recommendation that the agency pay the protester its
costs. Failure to file the claim within that time may result in
forfeiture of the protester's right to recover its costs.
(2) The contracting agency shall issue a decision on the claim for
costs as soon as practicable after the claim is filed. If the
protester and the contracting agency cannot reach agreement within a
reasonable time, GAO may, upon request of the protester, recommend
the amount of costs the agency should pay in accordance with 31
U.S.C. 3554(c). In such cases, GAO may also recommend that the
contracting agency pay the protester the costs of pursuing the claim
for costs before GAO.
(3) The contracting agency shall notify GAO within
60 days after GAO recommends the amount of costs the agency should
pay the protester of the action taken by the agency in response to
the recommendation.
� 21.9 TIME FOR DECISION
BY GAO.
----------------------------------------------------- Chapter 2:0.0.10
(a) GAO shall issue a decision on a protest within
125 days after it is filed.
(b) In protests where GAO uses the express option procedures in �
21.10, GAO shall issue a decision on a protest within 65 days after
it is filed.
(c) GAO, to the maximum extent practicable, shall resolve a timely
supplemental protest adding one or more new grounds to an existing
protest, within the time limit established in paragraph (a) of this
section for decision on the initial protest. If an amended protest
cannot be resolved within that time limit, GAO may resolve the
amended protest using the express option procedures in � 21.10.
� 21.10 EXPRESS OPTION,
ACCELERATED SCHEDULE, AND
SUMMARY DECISION.
----------------------------------------------------- Chapter 2:0.0.11
(a) At the request of a party or on its own initiative, GAO may
decide a protest using an express option.
(b) The express option will be adopted at the discretion of GAO and
only in those cases suitable for resolution within 65 days.
(c) Requests for the express option shall be in writing and received
in GAO no later than 3 days after the protest or supplemental protest
is filed. GAO will promptly notify the parties whether the case will
be handled using the express option.
(d) When the express option is used, the following schedule applies
instead of those deadlines in � 21.3 and � 21.7:
(1) The contracting agency shall file a complete report with GAO and
the parties 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 with GAO and the
other parties within 7 days after receipt of the report.
(3) If a hearing is held, no separate comments on the agency report
under paragraph (d)(2) of this section should be submitted unless
specifically requested by GAO. Consolidated comments on the agency
report and hearing shall be filed within 7 days after the hearing was
held or as specified by GAO.
(4) Where circumstances demonstrate that a case is no longer suitable
for resolution using the express option, GAO shall establish a new
schedule for submissions by the parties.
(e) At the request of a party or on its own initiative, GAO may
resolve any protest using an accelerated schedule and/or may issue a
summary decision for any protest.
� 21.11 EFFECT OF
JUDICIAL PROCEEDINGS.
----------------------------------------------------- Chapter 2:0.0.12
(a) A protester must immediately advise GAO of any court proceeding
which involves the subject matter of a pending protest and must file
with GAO copies of all relevant court documents.
(b) GAO will dismiss any protest where the matter involved is the
subject of litigation before a court of competent jurisdiction, or
where the matter involved has been decided on the merits by a court
of competent jurisdiction. GAO may, at the request of a court, issue
an advisory opinion on a bid protest issue that is before the court.
In these cases, unless a different schedule is established, the times
provided in this part for filing the agency report (� 21.3(c)),
filing comments on the report (� 21.3(h)), holding a hearing and
filing comments (� 21.7), and issuing a decision (� 21.9) shall
apply.
� 21.12 DISTRIBUTION OF
DECISIONS.
----------------------------------------------------- Chapter 2:0.0.13
(a) Unless it contains protected information, a copy of a decision
shall be provided to the protester, any intervenors, the head of the
contracting activity responsible for the protested procurement, and
the senior procurement executive of each Federal agency involved; a
copy shall also be made available to the public. A copy of a
decision containing protected information shall be provided only to
the contracting agency and to individuals admitted to any protective
order issued in the protest. A public version omitting the protected
information shall be prepared wherever possible.
(b) Decisions are available from GAO by electronic means.
� 21.13 NONSTATUTORY
PROTESTS.
----------------------------------------------------- Chapter 2:0.0.14
(a) GAO will consider protests concerning awards of subcontracts by
or for a Federal agency, sales by a Federal agency, or procurements
by agencies of the government other than Federal agencies as defined
in � 21.0(c) if the agency involved has agreed in writing to have
protests decided by GAO.
(b) The provisions of this part shall apply to nonstatutory protests
except for the provision of
� 21.8(d) pertaining to recommendations for the payment of costs.
The provision for the withholding of award and the suspension of
contract performance, 31 U.S.C. 3553(c) and (d), also does not apply
to nonstatutory protests.
� 21.14 REQUEST FOR
RECONSIDERATION.
----------------------------------------------------- Chapter 2:0.0.15
(a) The protester, any intervenor, and any Federal agency involved in
the protest may request reconsideration of a bid protest decision.
GAO will not consider a request for reconsideration that does not
contain a detailed statement of the factual and legal grounds upon
which reversal or modification is deemed warranted, specifying any
errors of law made or information not previously considered.
(b) A request for reconsideration of a bid protest decision shall be
filed, with copies to the parties who participated in the protest,
not later than 14 days after the basis for reconsideration is known
or should have been known, whichever is earlier.
(c) GAO will summarily dismiss any request for reconsideration that
fails to state a valid basis for reconsideration or is untimely. The
filing of a request for reconsideration does not require the
withholding of award and the suspension of contract performance under
31 U.S.C. 3553(c) and (d).
(See figure in printed edition.)Appendix I
SAMPLE PROTECTIVE ORDER
============================================================ Chapter 2
materials under a protective order are provided for informational
purposes only and are subject to change.
Appendix II SAMPLE
APPLICATIONS FOR ACCESS TO
MATERIALS UNDER A PROTECTIVE ORDER
============================================================ Chapter 2
(See figure in printed edition.)
*** End of document. ***