95-2226. General Accounting Office; Administrative Practice and Procedure, Bid Protest Regulations, Government Contracts  

  • [Federal Register Volume 60, Number 20 (Tuesday, January 31, 1995)]
    [Proposed Rules]
    [Pages 5871-5876]
    From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
    [FR Doc No: 95-2226]
    
    
    
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    Proposed Rules
                                                    Federal Register
    ________________________________________________________________________
    
    This section of the FEDERAL REGISTER contains notices to the public of 
    the proposed issuance of rules and regulations. The purpose of these 
    notices is to give interested persons an opportunity to participate in 
    the rule making prior to the adoption of the final rules.
    
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    Federal Register / Vol. 60, No. 20 / Tuesday, January 31, 1995 / 
    Proposed Rules
    [[Page 5871]]
    
    GENERAL ACCOUNTING OFFICE
    
    4 CFR Part 21
    
    
    General Accounting Office; Administrative Practice and Procedure, 
    Bid Protest Regulations, Government Contracts
    
    AGENCY: General Accounting Office.
    
    ACTION: Proposed rule.
    
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    SUMMARY: The General Accounting Office (GAO) is proposing to revise its 
    Bid Protest Regulations to implement the Federal Acquisition 
    Streamlining Act of 1994 (FASA) and to conform GAO's current regulation 
    to the practice that has evolved at GAO since April 1991, when GAO last 
    revised part 21. The proposed revision will improve the overall 
    efficiency and effectiveness of the bid protest process at GAO by 
    streamlining the process, by reducing the costs of pursuing protests at 
    GAO for all parties, and by permitting GAO to resolve protests as 
    expeditiously as possible. FASA requires that the implementing 
    regulation be concise and easily understood by vendors and government 
    officials, and the proposed revision reflects this requirement. The 
    proposed revision shortens the regulation, even though several 
    provisions implementing FASA are added.
    
    DATES: Comments must be submitted on or before April 3, 1995.
    
    ADDRESSES: Comments should be addressed to: Michael R. Golden, 
    Assistant General Counsel, General Accounting Office, 441 G Street, 
    NW., Washington, DC 20548.
    
    FOR FURTHER INFORMATION CONTACT: Michael R. Golden (Assistant General 
    Counsel) or Linda S. Lebowitz (Senior Attorney), 202-512-9732.
    
    SUPPLEMENTARY INFORMATION: The proposed revision to the General 
    Accounting Office's (GAO) Bid Protest Regulations implements statutory 
    changes contained in the Federal Acquisition Streamlining Act of 1994 
    (FASA), Pub. L. 103-355, 108 Stat. 3243, dated October 13, 1994. The 
    proposed revision is based on GAO's experience with the prior revision 
    to its regulation, including the use of protective orders and hearings, 
    which became effective on April 1, 1991 (56 FR 3759). The proposed 
    revision conforms GAO's current regulation to the practice that has 
    evolved at GAO since April 1991, and will improve the bid protest 
    process at GAO. In revising its regulation, GAO was guided by the 
    statutory mandate in sec. 10002(e) of FASA that regulations 
    implementing FASA be concise and easily understood by vendors and 
    government officials, and by the principle that GAO's bid protest 
    process remain as uncomplicated and informal as possible, consistent 
    with the goal of providing expeditious and meaningful relief to vendors 
    wrongfully excluded from procurements. More specifically, the proposed 
    revision will streamline the process, reduce the costs of pursuing 
    protests at GAO for all parties, and permit GAO to resolve protests as 
    expeditiously as possible. The regulation is shortened overall, even 
    though several new provisions are added in order to implement FASA. 
    Redundancies are eliminated and language changes reflect an effort to 
    make the regulation clearer and more readable.
        Explanations of significant revisions to GAO's Bid Protest 
    Regulations are set forth below.
        GAO's proposed regulation at 4 CFR 21.1(f), currently at 
    Sec. 21.3(b), requires that if a protester believes that the protest 
    includes confidential information which should be withheld, the 
    protester must advise GAO of this fact on the front page of the protest 
    submission and must file, simultaneously with the filing of its protest 
    with GAO, a redacted copy of the protest which omits the information. 
    GAO does not anticipate that this requirement will impose a significant 
    burden since a protester is currently obligated to identify, ``wherever 
    it appears,'' information in its protest that it believes should be 
    withheld as permitted by law.
        Paragraphs (c) and (d) of Sec. 21.3 implement the statutory 
    requirement set forth in sec. 1015 and 1065 of FASA that if any party 
    to a protest filed with GAO so requests, the agency shall produce a 
    protest file. The statutory language of those sections calls for the 
    implementing regulation to be consistent with the regulation regarding 
    the preparation and submission of the so-called ``rule 4 file'' in 
    protests before the General Services Administration Board of Contract 
    Appeals (GSBCA). In light of that direction, and taking into account 
    the somewhat longer period for deciding protests filed with GAO, the 
    proposed regulation provides that when requested, the agency is to 
    prepare and submit a protest file to GAO, the protester, and any 
    intervenors within 20 calendar days after the agency's receipt of the 
    request. (In revising its current regulation, GAO has converted from 
    ``working days'' to ``calendar days'' consistent with the requirements 
    of FASA.)
        GAO believes that requiring an agency to produce a protest file, 
    when one is requested, early in the bid protest process will make it 
    easier to carry out the mandate in sec. 1403 of FASA that supplemental 
    protests not delay the issuance of a decision by GAO. Currently, 
    supplemental protests are generally based on information included in 
    the documents contained in the agency report, and must generally be 
    filed within 10 working days of the protester's receipt of the 
    documents. GAO believes that if an agency provides the relevant 
    documents early in the process, supplemental protests will be filed 
    earlier. Consequently, the meaningful protest issues which need to be 
    addressed by GAO will be identified by the parties earlier in the 
    process, thus benefiting all parties in terms of time and costs. 
    Further, GAO believes that early production of the protest file will 
    allow bid protests to be resolved as expeditiously as possible, which 
    will shorten procurement suspensions.
        As with the ``rule 4 file,'' the protest file under the proposed 
    regulation will contain only pre-existing documents, rather than 
    documents prepared in response to the protest. As detailed in paragraph 
    (e) of Sec. 21.3, the contracting officer's statement of the relevant 
    facts and a memorandum of law are to be filed within 35 calendar days 
    after the agency receives telephone notice of the protest from GAO.
        Section 21.5(h), currently Sec. 21.3(m)(10), removes GAO's 
    consideration of subcontract protests where the subcontract is ``by or 
    for the government''; rather, GAO will consider [[Page 5872]] protests 
    concerning awards of subcontracts by or for a Federal agency as 
    nonstatutory protests in accordance with Sec. 21.13 where the agency 
    awarding the prime contract has requested in writing that subcontract 
    protests be decided by GAO. In US West Communications Services, Inc. v. 
    United States, 940 F.2d 622 (Fed. Cir. 1991), the court called into 
    question the GSBCA's review of a prime contractor's award of a 
    subcontract based on the language in the Competition in Contracting Act 
    of 1984, 40 U.S.C. 759(f)(9)(A) (1988), which authorizes the GSBCA to 
    review protests of a solicitation by a Federal agency for bids or 
    proposals for a proposed contract or contract. GAO's statutory language 
    in this regard is basically identical to that of the GSBCA. In the 
    absence of any language in FASA which addresses this matter, GAO 
    believes that it is appropriate to treat protests against awards of 
    subcontracts by or for a Federal agency as nonstatutory protests.
        Comments concerning the proposed rule should reference file number 
    B-259187. Comments may be filed by hand delivery or mail at the address 
    in the address line, or comments may be filed by facsimile transmission 
    at 202-512-9749.
    
    List of Subjects in 4 CFR Part 21
    
        Administrative practice and procedure, Bid protest regulations, 
    Government contracts.
    
        For the reasons set out in the preamble, title 4, chapter I, 
    subchapter B, part 21 of the Code of Federal Regulations is proposed to 
    be revised to read as follows:
        1. Part 21 is revised to read as follows:
    
    PART 21--BID PROTEST REGULATIONS
    
    Sec.
    21.0  Definitions.
    21.1  Filing a protest.
    21.2  Time for filing.
    21.3  Notice of protest, submission of agency report, and time for 
    filing of comments on report.
    21.4  Protective orders.
    21.5  Protest issues not for consideration.
    21.6  Withholding of award and suspension of contract performance.
    21.7  Hearings.
    21.8  Remedies.
    21.9  Time for decision by GAO.
    21.10  Express option.
    21.11  Effect of judicial proceedings.
    21.12  Distribution of decisions.
    21.13  Nonstatutory protests.
    21.14  Request for reconsideration.
    
        Authority: 31 U.S.C. 3551-3556.
    
    
    Sec. 21.0  Definitions.
    
        (a) Interested party means an actual or prospective bidder or 
    offeror whose direct economic interest would be affected by the award 
    of a contract or by the failure to award a contract.
        (b) Intervenor means an awardee if the award has been made or, if 
    no award has been made, all bidders or offerors who appear to have a 
    substantial prospect of receiving an award if the protest is denied.
        (c) Federal agency means any executive department or independent 
    establishment in the executive branch, including any wholly owned 
    government corporation, and any establishment in the legislative or 
    judicial branch, except the Senate, the House of Representatives and 
    the Architect of the Capitol and any activities under his direction.
        (d) Contracting agency means a Federal agency which has awarded or 
    proposes to award a contract under a protested procurement.
        (e) Days are calendar days. In computing a period of time for the 
    purpose of this part, the day from which the period begins to run is 
    not counted. When the last day of the period is a Saturday, Sunday, or 
    Federal holiday, the period extends to the next day that is not a 
    Saturday, Sunday, or Federal holiday. Similarly, when the General 
    Accounting Office (GAO), or another Federal agency where a filing 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 or mail; 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 and 
    that the entire document is received by 5:30 p.m. on the due date.
    
    
    Sec. 21.1  Filing a protest.
    
        (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 number 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) Specifically request a ruling by the Comptroller General of the 
    United States,
        (6) State the form of relief requested, and
        (7) Request specific documents relevant to the protest grounds.
        (d) The protester shall furnish a copy of the protest 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 copy of the protest 
    no later than 1 day after the protest is filed with GAO. The protest 
    document must indicate that a copy is being furnished within 1 day to 
    the appropriate individual or location.
        (e) 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.
        (f) GAO will not withhold material submitted by a protester from 
    any party outside the government unless it is permitted to do so by 
    law. 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, simultaneously with 
    the filing of its protest with GAO, a redacted copy of the protest 
    which omits the information.
        (g) Parties who intend to file documents containing classified 
    information should notify GAO in advance to obtain advice regarding 
    [[Page 5873]] procedures for filing and handling the information.
        (h) A protest may be dismissed for failure to comply with any of 
    the requirements of this section. However, a protest shall not be 
    dismissed for failure to comply with paragraph (d) 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.
    
    
    Sec. 21.2  Time for filing.
    
        (a)(1) Protests based upon alleged improprieties in a solicitation 
    which are apparent prior to bid opening or the time set for receipt of 
    initial proposals shall be filed prior to bid opening or the time set 
    for receipt of initial proposals. In procurements where proposals are 
    requested, alleged improprieties which do not exist in the initial 
    solicitation but which are subsequently incorporated into the 
    solicitation must be protested not later than the next closing time for 
    receipt of proposals following the incorporation.
        (2) In cases other than those covered in paragraph (a)(1) of this 
    section, protests shall be filed not later than 14 days after the basis 
    of protest is known or should have been known, whichever is earlier.
        (3) If a timely agency-level protest was previously filed, any 
    subsequent protest to GAO filed within 14 days of actual or 
    constructive knowledge of initial adverse agency action will be 
    considered, provided the agency-level protest was filed in accordance 
    with paragraphs (a)(1) and (a)(2) of this section, unless the 
    contracting agency imposes a more stringent time for filing, in which 
    case the agency's time for filing will control. In cases where an 
    alleged impropriety in a solicitation is timely protested to a 
    contracting agency, any subsequent protest to GAO will be considered 
    timely if filed within the 14-day period provided by this paragraph, 
    even if filed after bid opening or the closing time for receipt of 
    proposals.
        (b) Protests untimely on their face may be dismissed. A protester 
    shall include in its protest all information establishing the 
    timeliness of the protest; a protester will not be permitted to 
    introduce for the first time in a request for reconsideration 
    information necessary to establish that the protest was timely.
        (c) GAO, for good cause shown, or where it determines that a 
    protest raises issues significant to the procurement system, may 
    consider an untimely protest.
    
    
    Sec. 21.3  Notice of protest, submission of agency report, and time for 
    filing of comments on report.
    
        (a) GAO shall notify the contracting agency by telephone within 1 
    day after the filing of a protest, and 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 any communications to the contracting agency and to other 
    participating parties.
        (b) A contracting agency 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) If any party to the protest so requests, the contracting agency 
    shall prepare a protest file and provide a copy to GAO within 20 days 
    after the agency's receipt of the request. The contracting agency shall 
    simultaneously furnish a copy of the protest file to the protester and 
    any intervenors. The protest file shall include an index and a copy of 
    all relevant documents including, as appropriate: the protest; the bid 
    or proposal submitted by the protester; the bid or proposal of the firm 
    which is being considered for award, or whose bid or proposal is being 
    protested; all evaluation documents; the solicitation, including the 
    specifications or portions relevant to the protest; the abstract of 
    bids or offers or relevant portions; and any other relevant documents. 
    The contracting agency shall provide any additional documents requested 
    in the protest or explain why it is not required to produce the 
    documents. The contracting agency may request that the protester 
    produce relevant documents that are not in the agency's possession.
        (d) Information exempt from mandatory disclosure under the Freedom 
    of Information Act, 5 U.S.C. 552, may be omitted in the copy of the 
    protest file provided to the parties, unless counsel for a party has 
    been admitted to a protective order issued in the protest, in which 
    case the file shall be provided to counsel in accordance with the 
    protective order.
        (e) The contracting agency shall file a report on the protest with 
    GAO within 35 days after the telephone notice of the protest from GAO. 
    The report shall include all relevant documents as set forth in 
    paragraph (c) of this section, except to the extent already produced in 
    the protest file, as well as the contract- ing officer's statement of 
    the relevant facts and a memorandum of law.
        (f) Subject to any protective order issued in the protest, the 
    contracting agency shall simultaneously furnish a copy of the report to 
    the protester and any intervenors. The copy of the report filed with 
    GAO shall list the parties who have been furnished copies of the report 
    and shall identify any documents, or portions of documents, withheld 
    from any party and the reason for the with- holding. 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.
        (g) The contracting agency may request an extension of time for the 
    submission of the protest file or agency report. Extensions will be 
    granted sparingly.
        (h) The protester may request additional documents when their 
    existence or relevance first becomes evident. Except when authorized by 
    GAO, any request for additional documents must be filed with GAO and 
    the contracting agency not later than 2 days after their existence or 
    relevance is known or should have been known, whichever is earlier. The 
    contracting agency shall provide the requested documents and an index 
    to GAO and the other parties within 5 days or explain why it is not 
    required to produce the documents.
        (i) Upon the request of a party, GAO will decide whether the 
    contracting agency must provide any withheld documents and whether this 
    should be done under a protective order. When withheld documents are 
    provided, the protester's comments on the agency report shall be filed 
    within 10 days after its receipt of the documents, unless otherwise 
    specified by GAO.
        (j) Comments on the agency report shall be filed with GAO within 14 
    days after receipt of the report, with a copy provided to the 
    contracting agency and other participating parties. The protest shall 
    be dismissed unless the protester files comments or a written statement 
    requesting that the case be decided on the existing record, or requests 
    an extension of time within the 14-day period. Unless otherwise advised 
    by the [[Page 5874]] 
    protester, GAO will assume the protester received the agency report by 
    the due date specified in the acknowledgment of protest furnished by 
    GAO. Upon a showing that the specific circumstances of a protest 
    require a period longer than 14 days for the submission of comments, 
    GAO will set a new date for the submission of comments. Extensions will 
    be granted sparingly.
        (k) GAO may permit or request the submission of additional 
    statements by the parties and by other parties not participating in the 
    protest as may be necessary for the fair resolution of the protest.
    
    
    Sec. 21.4  Protective orders.
    
        (a) At the request of a party or on its own initiative, GAO may 
    issue a protective order controlling the treatment of protected 
    information. Such information may include proprietary, confidential, or 
    source-selection-sensitive material, as well as other information the 
    release of which could result in a competitive advantage to one or more 
    firms. The protective order shall establish procedures for application 
    for access to protected information, identification and safeguarding of 
    that information, and submission of redacted copies of documents 
    omitting protected information. Because a protective order serves to 
    facilitate the pursuit of a protest by a protester through counsel, it 
    is, in the first instance, the responsibility of protester's counsel to 
    request that a protective order be issued and to submit timely 
    applications for admission under that order.
        (b) If no protective order has been issued, the agency may withhold 
    from the parties those portions of its report which would ordinarily be 
    subject to a protective order. GAO will review in camera all 
    information not released to the parties.
        (c) After a protective order has been issued, counsel or 
    consultants retained by counsel appearing on behalf of a party may 
    apply for admission under the order by submitting an application to 
    GAO, with copies furnished simultaneously to all parties. The 
    application shall establish that the applicant is not involved in 
    competitive 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 sanctions as GAO deems appropriate, including 
    referral to appropriate bar associations or other disciplinary bodies 
    and restricting the individual's practice before GAO.
    
    
    Sec. 21.5  Protest issues not for consideration.
    
        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 Sec. 21.2(c)), or are not properly 
    before GAO. A protest or specific protest allegations may be dismissed 
    anytime sufficient information is obtained by GAO warranting dismissal. 
    Where an entire protest is dismissed, no agency report shall be filed; 
    where specific protest allegations are dismissed, an agency report 
    shall be filed on the remaining allegations. Among the protest bases 
    which shall be dismissed are the following:
        (a) Contract administration. The administration of an existing 
    contract is within the discretion of the contracting agency. Disputes 
    between a contractor and the agency are resolved pursuant to the 
    disputes clause of the contract and the Contract Disputes Act of 1978. 
    41 U.S.C. 601-613.
        (b) Small Business Administration issues.
        (1) Small Business Size Standards and Standard Industrial 
    Classification. Challenges of established size standards or the size 
    status of particular firms, and challenges of the selected standard 
    industrial classification may be reviewed solely by the Small Business 
    Administration. 15 U.S.C. 637(b)(6).
        (2) Small Business Certificate of Competency Program. Any referral 
    made to the Small Business Administration pursuant to sec. 8(b)(7) of 
    the Small Business Act, or any issuance of, or refusal to issue, a 
    certificate of competency under that section will not be reviewed by 
    GAO absent a showing of possible bad faith on the part of government 
    officials or a failure to consider vital information bearing on the 
    firm's responsibility. 15 U.S.C. 637(b)(7).
        (3) Procurements under sec. 8(a) of the Small Business Act. Under 
    that section, since contracts are entered into with the Small Business 
    Administration at the contracting officer's discretion and on such 
    terms as are agreed upon by the procuring agency and the Small Business 
    Administration, the decision to place or not to place a procurement 
    under the 8(a) program is not subject to review absent a showing of 
    possible bad faith on the part of government officials or that 
    regulations may have been violated. 15 U.S.C. 637(a).
        (c) Affirmative determination of responsibility by the contracting 
    officer. Because the determination that a bidder or offeror is capable 
    of performing a contract is based in large measure on subjective 
    judgments which generally are not readily susceptible of reasoned 
    review, an affirmative determination of responsibility will not be 
    reviewed absent a showing of possible bad faith on the part of 
    government officials or that definitive responsibility criteria in the 
    solicitation were not met.
        (d) Procurement protested to the General Services Administration 
    Board of Contract Appeals. Interested parties may protest a procurement 
    or proposed procurement of automated data processing equipment and 
    services to the General Services Administration Board of Contract 
    Appeals. After a protest to the Board, the same procurement generally 
    may not be the subject of a protest to GAO. 40 U.S.C. 759(f).
        (e) Protests not filed either in GAO or the contracting agency 
    within the time limits set forth in Sec. 21.2.
        (f) Protests which lack a detailed statement of the legal or 
    factual grounds of protest as required by Sec. 21.1(c)(4), or which 
    fail to clearly state legally sufficient grounds of protest as required 
    by Sec. 21.1(e).
        (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 Sec. 21.13.
    
    
    Sec. 21.6  Withholding of award and suspension of contract performance.
    
        (a) The following requirements regarding the withholding of award 
    and the suspension of contract performance when a protest is filed with 
    GAO are set forth in 31 U.S.C. 3553 (c) and (d). There is an additional 
    requirement contained in 48 CFR 33.104(d) that the contracting officer 
    give written notice to the protester and other parties of any 
    [[Page 5875]] decision to proceed with award or to continue contract 
    performance. The requirements are included here for informational 
    purposes.
        (b) When the contracting agency receives notice of a protest from 
    GAO prior to award of a contract, it may not award a contract under the 
    protested procurement while the protest is pending unless the head of 
    the procuring activity responsible for award of the contract determines 
    in writing and reports to GAO that urgent and compelling circumstances 
    significantly affecting interests of the United States will not permit 
    waiting for GAO's decision. This finding may be made only if the award 
    is otherwise likely to occur within 30 days.
        (c) When the contracting agency has awarded the contract, but 
    receives notice of a protest from GAO within 10 days of the date of 
    contract award, or within 5 days after the debriefing date offered to 
    an unsuccessful offeror for any debriefing that is requested and, when 
    requested, is required, the agency shall immediately direct the 
    contractor to cease contract performance and to suspend related 
    activities that may result in additional obligations being incurred by 
    the government under that contract while the protest is pending. The 
    contracting officer responsible for award of the contract may authorize 
    contract performance notwithstanding the pending protest if he or she 
    determines in writing and reports to GAO that:
        (1) Performance of the contract is in the government's best 
    interest, or
        (2) Urgent and compelling circumstances significantly affecting 
    interests of the United States will not permit waiting for GAO's 
    decision.
    
    
    Sec. 21.7  Hearings.
    
        (a) At the request of a party or on its own initiative, GAO may 
    conduct a hearing in connection with a protest. The request shall set 
    forth the reasons why a hearing is needed.
        (b) Prior to the hearing, GAO may hold a pre-hearing conference to 
    discuss and resolve matters such as the procedures to be followed, the 
    issues to be considered, and the witnesses who will testify.
        (c) Hearings generally will be conducted as soon as practicable 
    after receipt by the parties of the agency report and relevant 
    documents. Although hearings ordinarily will be conducted at GAO in 
    Washington, DC, hearings may, at the discretion of GAO, be conducted at 
    other locations.
        (d) All parties participating in the protest shall be invited to 
    attend the hearing. Others may be permitted to attend as observers and 
    may participate as allowed by GAO's hearing official. In order to 
    prevent the improper disclosure of protected information at the 
    hearing, GAO's hearing official may restrict attendance during all or 
    part of the proceeding.
        (e) Hearings shall normally be recorded and/or transcribed. If a 
    recording and/or transcript is made, any party may obtain copies at its 
    own expense.
        (f) If a witness whose attendance has been requested by GAO fails 
    to attend the hearing or fails to answer a relevant question, GAO may 
    draw an inference unfavorable to the party for whom the witness would 
    have testified.
        (g) If a hearing is held, no separate comments on the agency report 
    should be submitted unless specifically requested by GAO. All parties 
    may file consolidated comments on the hearing and the agency report 
    with GAO, with copies furnished to the other parties, within 7 days 
    after the hearing was held or as specified by GAO. 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 may dismiss the 
    protest.
        (h) In post-hearing comments, the parties should cite to specific 
    testimony during the hearing relevant to the disposition of the 
    protest.
    
    
    Sec. 21.8  Remedies.
    
        (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 makes the finding 
    referred to in Sec. 21.6(c)(1) that performance of the contract 
    notwithstanding a pending protest is in the government's best interest, 
    GAO shall make its recommendation(s) under paragraph (a) of this 
    section without regard to any cost or disruption from terminating, 
    recompeting, or reawarding the contract.
        (d) If GAO determines that a solicitation, proposed award, or award 
    does not comply with statute or regulation, it may recommend that the 
    contracting agency pay the protester the costs of:
        (1) Filing and pursuing the protest, including attorneys' fees and 
    consultant and expert witness fees; and
        (2) Bid and proposal preparation.
        (e) If the contracting agency decides to take corrective action in 
    response to a protest, GAO may recommend that the agency pay the 
    protester the costs of filing and pursuing the protest, including 
    attorneys' fees and consultant and expert witness fees. The protester 
    shall file any request that GAO recommend that costs be paid within 14 
    days after being advised that the contracting agency has decided to 
    take corrective action. The protester shall furnish a copy of its 
    request to the contracting agency, which may file a response within 14 
    days after receipt of the request, with a copy furnished to the 
    protester.
        (f)(1) If GAO recommends that the contracting agency pay the 
    protester the costs of filing and pursuing the protest and/or of bid or 
    proposal preparation, the protester and the agency shall attempt to 
    reach agreement on the amount of costs. The protester shall file its 
    claim for costs, detailing and certifying the time expended and costs 
    incurred, with the contracting agency within 90 days after receipt of 
    GAO's recommendation that the agency pay the protester its costs. 
    Failure to file the claim within that time shall result in forfeiture 
    of the protester's right to recover its costs. GAO may consider an 
    untimely claim for good cause shown.
        (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 such cases, GAO may also recommend that 
    the contracting agency pay the protester the costs of pursuing the 
    claim for costs before GAO. [[Page 5876]] 
        (3) The contracting agency shall notify GAO within 60 days after 
    GAO recommends the amount of costs the agency should pay the protester 
    of the action taken by the agency in response to the recommendation.
    
    
    Sec. 21.9  Time for decision by GAO.
    
        (a) GAO shall issue a decision on a protest within 125 days after 
    it is filed.
        (b) In protests where GAO uses the express option procedures in 
    Sec. 21.10, GAO shall issue a decision on a protest within 65 days 
    after it is filed.
        (c) GAO, to the maximum extent practicable, shall resolve a timely 
    supplemental protest adding one or more new grounds to an existing 
    protest, within the time limit established in paragraph (a) of this 
    section for decision on the initial protest. If an amended protest 
    cannot be resolved within that time limit, GAO may resolve the amended 
    protest using the express option procedures in Sec. 21.10.
    
    
    Sec. 21.10  Express option.
    
        (a) Any party may request that GAO decide a protest on an ``express 
    option'' expedited schedule.
        (b) The expedited schedule will be adopted at the discretion of GAO 
    and only in those cases suitable for resolution within 65 days.
        (c) Requests for an expedited schedule shall be in writing and 
    received in GAO no later than 3 days after the protest or supplemental 
    protest is filed. GAO will promptly notify the parties whether the case 
    will be handled on an expedited schedule.
        (d) When the express option is used, the following schedule applies 
    instead of those deadlines in Sec. 21.3 and Sec. 21.7:
        (1) The contracting agency shall file a complete report with GAO 
    and the parties within 20 days after it receives notice from GAO that 
    the express option will be used.
        (2) Comments on the agency report shall be filed with GAO and the 
    other parties within 7 days after receipt of the report.
        (3) If a hearing is held, no separate comments on the agency report 
    under paragraph (d)(2) of this section should be submitted unless 
    specifically requested by GAO. Consolidated comments on the agency 
    report and hearing shall be filed within 7 days after the hearing was 
    held or as specified by GAO.
        (4) If all parties agree, GAO will resolve protests decided on an 
    expedited schedule by a summary decision.
        (5) Where circumstances demonstrate that a case is no longer 
    suitable for resolution on an expedited schedule, GAO shall establish a 
    new schedule for submissions by the parties.
    
    
    Sec. 21.11  Effect of judicial proceedings.
    
        (a) A protester must immediately advise GAO of any court proceeding 
    which involves the subject matter of a pending protest and file 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 part 21 for filing the agency report (Sec. 21.3(e)), filing 
    comments on the report (Sec. 21.3(j)), holding a hearing and filing 
    comments (Sec. 21.7), and issuing a decision (Sec. 21.9) shall apply.
    
    
    Sec. 21.12  Distribution of decisions.
    
        (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's electronic bulletin board.
    
    
    Sec. 21.13  Nonstatutory protests.
    
        (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 
    Sec. 21.0(c) if the agency involved has agreed in writing to have its 
    protests decided by GAO.
        (b) The provisions of this part shall apply to nonstatutory 
    protests except for the provisions of Sec. 21.3(c) pertaining to the 
    contracting agency protest file and Sec. 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.
    
    
    Sec. 21.14  Request for reconsideration.
    
        (a) The protester, any intervenor, and any Federal agency involved 
    in the protest may request reconsideration of a bid protest decision. 
    GAO will not consider a request for reconsideration that does not 
    contain a detailed statement of the factual and legal grounds upon 
    which reversal or modification is deemed warranted, specifying any 
    errors of law made or information not previously considered.
        (b) A request for reconsideration of a bid protest decision shall 
    be filed, with copies to the parties who participated in the protest, 
    not later than 14 days after the basis for reconsideration is known or 
    should have been known, whichever is earlier.
        (c) GAO will summarily dismiss any request for reconsideration that 
    fails to state a valid basis for reconsideration or is untimely. The 
    filing of a request for reconsideration does not require the 
    withholding of award and the suspension of contract performance under 
    31 U.S.C. 3553 (c) and (d).
    Robert P. Murphy,
    General Counsel.
    [FR Doc. 95-2226 Filed 1-30-95; 8:45 am]
    BILLING CODE 1610-01-P
    
    

Document Information

Published:
01/31/1995
Department:
Government Accountability Office
Entry Type:
Proposed Rule
Action:
Proposed rule.
Document Number:
95-2226
Dates:
Comments must be submitted on or before April 3, 1995.
Pages:
5871-5876 (6 pages)
PDF File:
95-2226.pdf
CFR: (17)
4 CFR 21.3(b)
4 CFR 21.0(c)
4 CFR 21.0
4 CFR 21.1
4 CFR 21.2
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