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

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

Cross Reference

Link to an amendment published at 83 FR 13823, Apr. 2, 2018.

(a) GAO shall notify the agency by telephone within 1 day after the filing of a protest, and, unless the protest is dismissed under this part, shall promptly send provide a written confirmation to the agency and an acknowledgment to the protester. The agency shall immediately give notice of the protest to the contractor awardee if award has been made or, if no award has been made, to all bidders or offerors who appear to have a substantial prospect of receiving an award. The agency shall furnish provide copies of the protest submissions to those parties, except where disclosure of the information is prohibited by law, with instructions to communicate further directly with GAO. All parties shall furnish provide copies of all protest communications with GAO to the agency and to other participating parties . All protest communications shall be sent by means reasonably calculated to effect expeditious deliveryeither through EPDS or by email. GAO's website [https://epds.gao.gov/login] includes guidance regarding when to file through EPDS versus communicating by email or other means.

(b) A 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 agency shall file a report on the protest with GAO within 30 days after the telephone receiving notice of the protest from GAO. The report provided to the parties need not contain documents which the agency has previously furnished provided or otherwise made available to the parties in response to the protest. At least 5 days prior to the filing of the report, in cases in which the protester has filed a request for specific documents, the agency shall respond file a response to the request for documents in writing. . If the fifth day prior to the filing of the report falls on a weekend or Federal holiday, the response shall be filed by the last business day that precedes the weekend or holiday. The agency's response shall, at a minimum, identify whether the requested documents exist, which of the requested documents or portions thereof the agency intends to produce, which of the requested documents or portions thereof the agency intends to withhold, and the basis for not producing any of the requested documents or portions thereof. Any objection to the scope of the agency's proposed disclosure or nondisclosure of documents must be filed with GAO and the other parties within 2 days of receipt of this listresponse.

(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, a party may file a request that another party produce relevant documents, or portions of documents, that are not in the agency's possession.

(e) Subject to any protective order issued in the protest pursuant to § 21.4, the 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 or intervenor does not have counsel admitted to a protective order and documents are withheld from the protester in accordance with this partor intervenor on that basis, the agency shall provide documents adequate to file redacted documents that adequately inform the protester and/or intervenor of the basis of the agency's position. arguments in response to the protest. GAO's website [https://epds.gao.gov/login] provides guidance regarding filing documents where no protective order is issued or where a protester or intervenor does not have counsel admitted to a protective order.

(f) The agency may file a request for an extension of time for the submission of the list of documents response to be provided filed 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 file a request for additional documents after receipt of the agency report when their existence or relevance first becomes evident. Except when authorized by GAO, any request for additional documents must be filed with GAO and the agency not later than 2 days after their existence or relevance is known or should have been known, whichever is earlier. The agency shall provide file 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 a request of filed by a party, GAO will decide whether the agency must provide file 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)

(1) Comments on the agency report shall be filed

with GAO

within 10 days after

receipt of

the

report, with a copy provided to the agency and other participating parties. The protest shall be dismissed unless the protester files comments within the 10-day period

agency has filed the report, except where GAO has granted an extension of time, or where GAO has established a shorter period

in accordance with § 21.10(e).

for filing of comments. Extensions will be granted on a case-by-case basis.

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

(2) The protest shall be dismissed unless the protester files comments within the period of time established in § 21.3(i)(1).

(3) GAO will dismiss any protest allegation or argument where the agency's report responds to the allegation or argument, but the protester's comments fail to address that response.

(j) GAO may request or permit the submission of additional statements by the parties and by other parties participating in the protest as may be necessary for the fair resolution of the protest. The agency and other parties must receive GAO's approval before submitting any additional statements. GAO reserves the right to disregard material submitted without prior approval.

[61 FR 39042, July 26, 1996, as amended at 67 FR 79835, Dec. 31, 2002; 73 FR 32430, June 9, 2008; 83 FR 13823, Apr. 2, 2018]