Bid Protests at GAO: A Descriptive Guide (Other Written Prod., 01/01/96,
GAO/OGC-96-24).
GAO published the sixth edition of its descriptive guide to the GAO bid
protest process. The guide incorporates changes made to GAO Bid Protest
Regulations, effective August 8, 1996. Protesters should refer to that
publication for full legal guidance.
--------------------------- Indexing Terms -----------------------------
REPORTNUM: OGC-96-24
TITLE: Bid Protests at GAO: A Descriptive Guide
DATE: 01/01/96
SUBJECT: Contract award protests
Bid evaluation protests
Specifications protests
Federal procurement
Procurement protest procedures
Bid rejection protests
Interested protesters
Reporting requirements
Administrative remedies
Statutory limitation
******************************************************************
** This file contains an ASCII representation of the text of a **
** GAO report. Delineations within the text indicating chapter **
** titles, headings, and bullets are preserved. Major **
** divisions and subdivisions of the text, such as Chapters, **
** Sections, and Appendixes, are identified by double and **
** single lines. The numbers on the right end of these lines **
** indicate the position of each of the subsections in the **
** document outline. These numbers do NOT correspond with the **
** page numbers of the printed product. **
** **
** No attempt has been made to display graphic images, although **
** figure captions are reproduced. Tables are included, but **
** may not resemble those in the printed version. **
** **
** Please see the PDF (Portable Document Format) file, when **
** available, for a complete electronic file of the printed **
** document's contents. **
** **
** A printed copy of this report may be obtained from the GAO **
** Document Distribution Center. For further details, please **
** send an e-mail message to: **
** **
** **
** **
** with the message 'info' in the body. **
******************************************************************
Cover
================================================================ COVER
Office of General Counsel
Sixth Edition
1996
BID PROTESTS AT GAO: A
DESCRIPTIVE GUIDE
GAO/OGC-96-24
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 awards of federal contracts.
Over the years, GAO has developed a substantial body of law and
standard procedures for considering bid protests. This is the sixth
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 August 8, 1996, to
implement the Federal Acquisition Reform Act of 1996 and the
Information Technology Management Reform Act of 1996, as included in
the National Defense Authorization Act for Fiscal Year 1996.
We have improved this edition of the booklet by providing additional
and updated practice tips to assist parties participating in a bid
protest at GAO. We also have updated the appendixes which contain a
revised sample protective order and revised sample applications for
access to material 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 awards
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 to implement the requirement in the Information
Technology Management Reform Act of 1996, as included in the National
Defense Authorization Act for Fiscal Year 1996, that GAO issue bid
protest decisions within 100 calendar days for any new protest filed
with GAO on or after August 8, 1996. (In these regulations, all
"days" are calendar days.) 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 deemed 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, the Federal Acquisition
Streamlining Act of 1994, and the Federal Acquisition Reform Act of
1996 and the Information Technology Management Reform Act of 1996, as
included in the National Defense Authorization Act for Fiscal Year
1996. 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. GAO's Bid
Protest Regulations govern GAO's handling of protests and impose
certain requirements on contracting agencies, protesters, and others
who participate in the bid protest process at GAO.
OVERVIEW OF THE BID PROTEST
PROCESS
---------------------------------------------------------- Chapter 1:2
The bid protest process at GAO begins with the filing of a written
protest. Unless the protest is dismissed because it is procedurally
or substantively defective (e.g., the protest is untimely or the
protest fails to clearly state legally sufficient grounds of
protest), the contracting agency is required to file with GAO an
agency report responding to the protest 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.
During the course of a GAO protest, as appropriate, GAO may schedule
status or other informal types of conferences to resolve procedural
matters and to obtain information material to the disposition of the
protest. GAO also may find that a hearing is necessary to resolve
factual and legal issues raised in the protest. 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 who will testify at the hearing, 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 parties participating in the protest. GAO may sustain the
protest (that is, find that the agency violated a procurement statute
or regulation and that the violation prejudiced the protester), in
which case GAO will recommend appropriate corrective action.
Alternatively, GAO may deny the protest or may dismiss the protest
without reviewing the matter. GAO will issue its decision not later
than 100 days from the date the protest was filed. The exact date on
which GAO issues the decision depends on the urgency of the
procurement, the complexity of the factual and legal issues raised 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. 4C.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, and
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. 4C.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 4C.F.R.
21.0(c). 4C.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 4C.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. 4C.F.R. 21.1(b). Protests of
different procurements must be separately filed. 4C.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. 4C.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. 4C.F.R.
21.1(d). In this regard, protesters must explain the relevancy of
requested documents to their protest grounds and the reason a hearing
is necessary to resolve the protest. Id.
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 to GAO and the contracting agency a
redacted version of the protest which omits such information.
4C.F.R. 21.1(g).
A party may request that GAO decide a protest using an express option
schedule or other flexible alternative procedures, including
establishing an accelerated schedule and/or issuing a summary
decision. 4C.F.R. 21.10(a), (e).
(See figure in printed
edition.)
WHEN TO PROTEST
-------------------------------------------------------- Chapter 1:3.4
The regulations set forth the timeliness requirements for filing
protests at GAO. 4C.F.R. 21.2. Because bid protests may delay
the procurement of needed goods and services, GAO, except under
limited circumstances, strictly enforces these timeliness
requirements.
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. 4C.F.R.
21.2(a)(1). A solicitation defect that was not apparent before
that time must be protested not later than 10 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 not later than 10 days
after the protester knew or should have known the basis of protest
(whichever is earlier), with the exception of protests challenging a
procurement conducted on the basis of competitive proposals under
which a debriefing is "requested and, when requested, is required"
(that is, a statutorily required debriefing). In these cases, with
respect to any protest basis which was known or should have been
known before the statutorily required debriefing, the protester must
not file its initial protest before the debriefing date offered to
the protester, but must file its initial protest not later than 10
days after the date on which the debriefing was held. 4C.F.R.
21.2(a)(2).
The purpose of the exception to the timeliness rules for negotiated
procurements is to encourage vendors to seek, and contracting
agencies to give, early and meaningful debriefings prior to the
vendor deciding whether or not to file a protest. Thus, in
procurements conducted on the basis of competitive proposals in which
a statutorily required debriefing is held, that is, where a
debriefing is requested and, when requested, is required, a protester
will always have up to 10 days after the debriefing to file its
initial protest.
Special timeliness rules govern protests initially filed with the
contracting agency. In those cases, the protest to GAO must be filed
not later than 10 days after the protester learned of "initial
adverse agency action." 4C.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 filing a
subsequent protest with GAO should be alert to any possible agency
action that could be viewed as indicating that the agency is denying
the agency-level protest.
Agency-level protests must be filed in accordance with GAO's
timeliness rules at 4C.F.R. 21.2(a)(1) and (a)(2), unless the
agency imposes a more stringent time for filing, in which case the
agency's time for filing will control. Thus, even if a firm files a
protest with GAO within 10 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. 4C.F.R. 21.2(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 10 days of the firm's
learning that the agency has denied the agency-level protest, GAO
will not consider a protest of that impropriety since the
agency-level protest of the alleged impropriety was not filed prior
to bid opening.
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 issues of
interest to the procurement community. 4C.F.R. 21.2(c).
Protesters should be aware, however, that GAO will invoke these
exceptions sparingly.
Finally, GAO recognizes that the North American Free Trade Agreement
(NAFTA) contains a 10-working-day timeliness requirement which is
inconsistent with GAO's timeliness rules. However, because of the
flexibility of GAO's timeliness rules, GAO will afford a NAFTA
protester all treaty rights for purposes of the timely filing of a
protest.
(See figure in printed
edition.)
(See figure in printed
edition.)
(See figure in printed
edition.)
(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. 4C.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. 4C.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 official 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 a 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 GAO's 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. 4C.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 sends the protester a
written notice acknowledging receipt of the protest. 4C.F.R.
21.3(a). In appropriate cases, GAO may issue a protective order
package, a hearing schedule, and/or a status conference notice
simultaneously with the acknowledgment notice. 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 10 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 and the previously referenced official fax number also appear
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.
4C.F.R. 21.3(a). That telephone call is important because it is
the official notice that may trigger a statutory stay in the award or
of performance of a contract pending GAO's decision. The call also
triggers the agency report requirement. 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 statutory stay. 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.)
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." 4C.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.
(See figure in printed
edition.)
SUMMARY DISMISSAL
-------------------------------------------------------- Chapter 1:4.4
If a protest is summarily dismissed, that is, if GAO dismisses the
protest on jurisdictional or procedural grounds, GAO will not review
the merits of the protest by requesting an agency report. 4C.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 will dismiss the latter ground (which is for consideration by the
Small Business Administration, not GAO), but may 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.
4C.F.R. 21.5(f), citing 4C.F.R. 21.1(c)(4) and 4C.F.R.
21.1(f), respectively.
Once the protest is received, the contracting agency and/or an
intervenor may request that GAO summarily dismiss the protest or some
of its grounds. 4C.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. GAO will promptly
address the dismissal request. If GAO grants the request, either in
whole or in part, GAO will not require the agency to prepare a report
in response to the protest or in response to those grounds of protest
which were dismissed.
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.
4C.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. A protective order package, which includes the protective
order and the application(s) for access to material under a
protective order, generally will be issued soon after a protest is
filed, but in appropriate cases, may be issued simultaneously with
the acknowledgment notice.
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 counsel 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 protected information and that there will be
no significant risk of inadvertent disclosure of such information.
4C.F.R. 21.4(c). GAO has issued a number of decisions which
address matters related to the admission of applicants under a
protective order. Individuals permitted access to protected
information are not allowed to disclose that information 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 the terms of a protective order.
4C.F.R. 21.4(d).
Because the information released under a protective order is not
GAO's, but rather the contracting agency's or one of the private
parties, GAO relies on these parties to carefully review applications
for access to material under a protective order (and to call to GAO's
attention any possible violation of a protective order). If no party
objects to an individual's application, GAO will generally admit the
applicant under 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. 4C.F.R. 21.4(c). The
GAO attorney will generally permit the objecting party to submit the
specific objection, in writing, the next day. GAO will promptly
address any objections. Even after the period for filing an
objection has passed, GAO may withhold its ruling on an application
(or may revoke an admission) if information comes to light which
indicates that the applicant does not meet the criteria for
admission.
A sample protective order and sample applications for access to
material 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, which are
provided in this booklet for informational purposes only, have
recently been revised. More specifically, under paragraph 1 of the
protective order, a protective order issued for an initial protest is
now automatically extended by the terms of the order to cover all
proceedings associated with the initial protest, including
supplemental/amended protests, requests for reconsideration, and
claims for costs. Under paragraph 7 of the protective order, GAO
expressly authorizes a party admitted under a protective order to
retain a single copy of a protected decision or letter issued by GAO,
subject indefinitely to the terms of the order (except those terms
regarding the return or destruction of protected material). Finally,
in paragraph 7 of the application for access to material under a
protective order for both outside counsel and in-house counsel, GAO
requires applicants to disclose those instances within the last 5
years (as opposed to in perpetuity) when they have been denied
admission to a protective order, or had admission revoked, or been
found to have violated a protective order issued by GAO or by an
administrative or judicial tribunal. (No substantive revisions were
made to the application for access to material under a protective
order for consultant.) The sample documents also reflect minor
language revisions and are subject to further change.
Any violation of the terms of a protective order may result in the
imposition of such sanctions as GAO deems appropriate, including but
not limited to referral of the violation to appropriate bar
associations or other disciplinary bodies, and restricting the
individual's practice before GAO. 4C.F.R. 21.4(d).
(See figure in printed
edition.)
(See figure in printed
edition.)
(See figure in printed
edition.)
AGENCY REPORT
-------------------------------------------------------- Chapter 1:4.6
Within 30 days after an agency receives telephonic notice of a
protest from GAO, the agency is required to provide GAO, the
protester, and any intervenors a complete written report responding
to the protest, including all relevant documents, or portions of
documents, and an explanation of the agency's position. 4C.F.R.
21.3(c). The report generally includes a statement of the relevant
facts (and a best estimate of the contract value) signed by the
contracting officer, a memorandum of law explaining the agency's
position in terms of procurement law, and a list and a copy of all
relevant documents, or portions of documents, not previously
furnished. 4C.F.R. 21.3(d).
GAO encourages agencies to voluntarily release to the parties
documents which are relevant to the protest prior to the filing of
the agency report. Documents provided to the parties prior to the
filing of the agency report or documents which are otherwise made
available to the parties, for example, by allowing the parties to
review documents on site at the agency prior to the filing of the
report, need not be produced in the copy of the report provided to
the parties. 4C.F.R. 21.3(c).
In addition, so that GAO may resolve any document disputes prior to
the filing of the agency report, GAO requires that at least 5 days
prior to the filing of the report, in cases in which the protester
has requested in its protest or shortly thereafter specific documents
material to the disposition of the protest, that the agency prepare a
list of those documents, or portions of documents, which it has
previously released or intends to produce in its report, and of the
documents which it intends to withhold and the reasons for the
proposed withholding. Id. The list must be provided to all parties
and to GAO. Objections to the scope of the agency's proposed
disclosure or nondisclosure of documents must be filed with GAO and
all other parties within 2 days of receiving the list. Id.
The agency may omit documents, or portions of documents, from the
copy of the report provided to the parties if the omitted information
is protected and a party receiving the report is not represented by
counsel admitted under a protective order. 4C.F.R. 21.3(e).
Where the protester is proceeding without counsel admitted under a
protective order and documents are withheld, it is important that the
agency provide the protester with information sufficient to clearly
inform the protester of the agency's position, 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.
4C.F.R. 21.3(d). 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, subject to the terms of any protective order.
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. 4C.F.R. 21.3(g). 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 not later than 2 days after receiving the request by either
producing the documents, or portions of 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. 4C.F.R. 21.3(i). Comments generally are due at
GAO within 10 days after receipt of the report. Id. Unless
otherwise advised by the protester, GAO will assume that the
protester received the report not later than the due date specified
in the acknowledgment notice furnished by GAO. Id. A copy of the
comments should be furnished to each of the other parties not 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 within the original 10-day comment filing period, unless GAO
extends this period. 4C.F.R. 21.3(h).
Failure of the protester to file comments, to request in writing that
the case be decided on the existing written record, or to request an
extension of time within the 10-day period will result in dismissal
of the protest. 4C.F.R. 21.3(i).
(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 in person or by telephone where it concludes that the protest
cannot otherwise be resolved on the written record alone. 4C.F.R.
21.7(a), (c).
Because hearings increase the costs and burdens of protests, GAO
holds hearings only when necessary. A request for a hearing should
explain why a hearing is necessary to resolve the protest, and point
out, for example, factual and legal questions that GAO must consider
in order to decide the protest. 4C.F.R. 21.1(d)(3), 21.7(a).
GAO has issued a number of decisions which discuss reasons for
holding hearings. While the regulations do not establish a deadline
for requesting a hearing, such a request should be submitted as early
as possible in the protest process in order to avoid unnecessary
delays and disruptions. Parties should also be aware that GAO may
identify shortly after a protest is filed whether the case is one in
which a hearing appears likely to be appropriate. On the other hand,
the appropriateness of a hearing often is not clear until after the
contracting agency has filed its report and, in many cases, is not
clear until after the protester has submitted its comments on the
report. GAO may decide at these later times that a hearing is
necessary to resolve the protest.
In cases where GAO decides to hold a hearing, it will generally
conduct a pre-hearing conference with all parties. 4C.F.R.
21.7(b). The purpose of that conference is to review the scope of
the hearing, to identify the appropriate witnesses and their
availability, to establish the date and location of the hearing, and
to discuss other logistical matters. In cases where GAO determines
that only some of the protest issues require a hearing, it will
generally limit the hearing 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 under the protective order. 4C.F.R.
21.7(d).
At least 1 day prior to the hearing, parties must advise GAO of those
individuals expected to attend the hearing so that these individuals
may gain access to the GAO building where the hearing room is
located.
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 protest. 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. 4C.F.R.
21.7(g). Those comments are due 5days after the hearing ends,
unless GAO sets a different date. Id. If GAO decides to hold a
hearing before the receipt of comments on the agency report, GAO may
direct the private parties not to submit separate comments on the
report, but to consolidate their views on the report with 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 100 days after
the protest is filed, unless GAO decides the case under the 65-day
express option schedule. 4C.F.R. 21.9(a), (b). If a protester
has filed a timely supplemental or a timely amended protest, GAO will
endeavor to resolve the supplemental/amended protest within the
100-day time frame for a decision on the initial protest. 4C.F.R.
21.9(c). If that is not feasible, GAO may consider using the
express option schedule or other accelerated schedule for the
resolution of the supplemental/amended protest. Id.; 4C.F.R.
21.10(e).
EXPRESS OPTIONS
-------------------------------------------------------- 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." 4C.F.R. 21.10(a). A party requesting
that GAO decide the case on this basis should submit a written
request to that effect not later than 5 days after the protest is
filed. 4C.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. 4C.F.R. 21.10(d)(1). Comments on
the report generally are due within 5 days after receipt of the
report. 4C.F.R. 21.10(d)(2). If a hearing is needed, GAO
generally will not request separate comments on the agency report;
rather, GAO will require that consolidated comments on the report and
hearing be filed within 5 days after the hearing ends, unless GAO
sets a different date. 4C.F.R. 21.10(d)(3). Under the express
option schedule, GAO's decision will be issued not later than 65 days
after the protest is filed. 4C.F.R. 21.9(b), 21.10(b). GAO may
decide at any time that the express option schedule is no longer
appropriate, and may set a different schedule for the protest, which
will not exceed the time frame (100 days) for deciding a non-express
option case.
FLEXIBLE ALTERNATIVE
PROCEDURES
-------------------------------------------------------- Chapter 1:7.2
Notwithstanding any other provision in these regulations, at the
request of a party or on its own initiative, GAO may use flexible
alternative procedures, including, for example, establishing an
accelerated schedule and/or issuing a summary decision, to resolve
any protest. 4C.F.R. 21.10(e). This provision is intended to
provide a flexible, accelerated protest resolution procedure at GAO
which will minimize disruptions to the procurement cycle. In
addition, GAO is receptive to using alternative dispute
resolution-type procedures either before a protest is filed or during
the pendency of a protest to resolve appropriate matters.
STATUS AND OTHER TYPES OF
INFORMAL CONFERENCES
-------------------------------------------------------- Chapter 1:7.3
To facilitate the expeditious development and resolution of a
protest, GAO will conduct status and other types of informal
conferences, by telephone or in person, with all parties
participating in a protest. 4C.F.R. 21.10(f). Such conferences
may be held at any time during the bid protest process and will be
tailored to the circumstances of a particular case. For example,
status and other types of informal conferences are beneficial for
resolving protective order admission objections, document disputes,
and summary dismissal requests; for discussing issues related to
hearings; and for obtaining answers to questions which are relevant
and material to the disposition of a protest.
PROTEST DISPOSITION
---------------------------------------------------------- Chapter 1:8
GAO will either dismiss, deny, or sustain a 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 consideration 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 where 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. 4C.F.R. 21.8(a), (b).
If the protest is sustained, GAO will recommend that the protester be
reimbursed for the costs 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 costs of
preparing its bid or proposal. 4C.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 60 days after receipt of GAO's recommendation that the
agency pay these costs. 4C.F.R. 21.8(f)(1). A claim must be
supported by adequate documentation. 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. 4C.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. 4C.F.R. 21.11(a).
GAO will not consider a protest where the matter involved is the
subject of litigation in court. 4C.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. 4C.F.R. 21.14(a). A
request for reconsideration does not result in the withholding of
award or the suspension of contract performance. 4C.F.R.
21.14(c).
GAO must receive the request for reconsideration within 10 days after
the basis of reconsideration is known or should have been known,
whichever is earlier. 4C.F.R. 21.14(b). The request must
identify the alleged factual and/or legal errors in the decision.
4C.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,
which are applicable to new protests filed on or after August 8,
1996, 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 any period of time
described in Subchapter V, Chapter 35 of Title31, United States
Code, including those described in this part, the day from which the
period begins to run is not counted, and 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, explaining the relevancy of the
documents to the protest grounds, and
(3) Request a hearing, explaining the reasons that a hearing is
needed to resolve the protest.
(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 not 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 a redacted copy of the
protest which omits the information with GAO and the agency within 1
day after the filing of its protest with GAO.
(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) Protests other than those covered by paragraph (a)(1) of this
section shall be filed not later than 10days after the basis of
protest is known or should have been known (whichever is earlier),
with the exception of protests challenging a procurement conducted on
the basis of competitive proposals under which a debriefing is
requested and, when requested, is required. 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, 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 filed within 10days 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 10-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 expeditious 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 30 days after the telephone notice of the protest from
GAO. The report provided to the parties need not contain documents
which the agency has previously furnished 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 provide to all
parties and GAO a list of those documents, or portions of documents,
which the agency has released to the protester or intends to produce
in its report, and of the documents which the agency intends to
withhold from the protester and the reasons for the proposed
withholding. Any objection to the scope of the agency's proposed
disclosure or nondisclosure of documents must be filed with GAO and
the other parties within 2 days of receipt of this list.
(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 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;
the abstract of bids or offers; and any other relevant documents. In
appropriate cases, the contracting agency may request that the
protester produce relevant documents, or portions of documents, that
are not in the agency's possession.
(e) 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. 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.
(f) The contracting agency may request an extension of time for the
submission of the list of documents to be provided by the agency
pursuant to 21.3(c) or for the submission of the agency report.
Extensions will be granted on a case-by-case basis.
(g) The protester may request 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 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, or portions of documents, and a list
to GAO and the other parties within 2 days or explain why it is not
required to produce the documents.
(h) Upon the request of a party, GAO will decide whether the
contracting agency must provide any withheld documents, or portions
of 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 the original
comment filing period unless GAO determines that an extension is
appropriate.
(i) Comments on the agency report shall be filed with GAO within 10
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 10-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 10
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.
(j) GAO may request or permit 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. The
agency and other parties shall not submit any additional statements
unless the statements are specifically requested by GAO or submitted
after permission has been granted by GAO.
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 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
decision-making 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 such 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 integrity. For any Federal procurement, GAO will not
review an alleged violation of subsections (a), (b), (c), or (d) of
sec. 27 of the Office of Federal Procurement Policy Act,
41 U.S.C. 423, as amended by sec. 4304 of the National Defense
Authorization Act for Fiscal Year 1996,
Pub. L. 104-106, 110 Stat. 186, February 10, 1996, where the
protester failed to report the information it believed constituted
evidence of the offense to the Federal agency responsible for the
procurement within 14days after the protester first discovered the
possible violation. The provision in paragraph (d) of 21.5 will
apply not later than January 1, 1997.
(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).
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 to resolve the protest.
(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, or by telephone.
(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 5 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 15 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 15 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 60 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 60days 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 100days 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, or a timely amended protest, within the time limit
established in paragraph (a) of this section for decision on the
initial protest. If a supplemental or an amended protest cannot be
resolved within that time limit, GAO may resolve the supplemental or
amended protest using the express option procedures in 21.10.
21.10 EXPRESS OPTIONS,
FLEXIBLE ALTERNATIVE
PROCEDURES, ACCELERATED
SCHEDULES, SUMMARY
DECISIONS, AND STATUS AND
OTHER CONFERENCES.
----------------------------------------------------- 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 not later than 5 days after the protest or
supplemental/amended 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 5 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 5 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) GAO may use flexible alternative procedures to promptly and
fairly resolve a protest, including establishing an accelerated
schedule and/or issuing a summary decision.
(f) GAO may conduct status and other conferences by telephone or in
person with all parties participating in a protest to promote the
expeditious development and resolution of the 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(i)), 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 10 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
protective order are provided for informational purposes only and are
subject to change.
(See figure in printed edition.)
(See figure in printed edition.)
(See figure in printed edition.)
(See figure in printed edition.)Appendix II
SAMPLE APPLICATIONS FOR ACCESS TO
MATERIAL UNDER A PROTECTIVE ORDER
============================================================ Chapter 2
(See figure in printed edition.)
(See figure in printed edition.)
(See figure in printed edition.)
(See figure in printed edition.)
(See figure in printed edition.)
(See figure in printed edition.)
(See figure in printed edition.)
(See figure in printed edition.)
*** End of document. ***