[Federal Register Volume 61, Number 145 (Friday, July 26, 1996)]
[Rules and Regulations]
[Pages 39219-39220]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18510]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Part 33
[FAC 90-40, FAR Case 95-309, Item XIII]
RIN 9000-AH10
Federal Acquisition Regulation; Agency Procurement Protests
AGENCIES: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Interim rule with request for comment.
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SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council have agreed to an interim rule amending
the Federal Acquisition Regulation (FAR) to provide for informal,
procedurally simple, and inexpensive resolution of protests. This
interim rule implements Executive Order 12979 which was signed by the
President on October 25, 1995. This regulatory action was not subject
to Office of Management and Budget review under Executive Order 12866,
dated September 30, 1993, and is not a major rule under 5 U.S.C. 804.
DATES: Effective Date: July 26, 1996.
Comment Date: Comments should be submitted to the FAR Secretariat
at the address shown below on or before September 24, 1996 to be
considered in the formulation of a final rule.
ADDRESSES: Interested parties should submit written comments to:
General Services Administration, FAR Secretariat (MVR), 18th & F
Streets, NW., Room 4035, Attn: Ms. Beverly Fayson, Washington, DC
20405.
Please cite FAC 90-40, FAR case 95-309, in all correspondence
related to this case.
FOR FURTHER INFORMATION CONTACT: Mr. Jack O'Neill at (202) 501-3856 in
reference to this FAR case. For general information, contact the FAR
Secretariat, Room 4037, GS Building, Washington, DC 20405 (202) 501-
4755. Please cite FAC 90-40, FAR case 95-309.
SUPPLEMENTARY INFORMATION:
A. Background
This interim rule revises the agency procurement protest procedures
at FAR 33.103 to implement Executive Order 12979 of October 25, 1995,
Agency Procurement Protests (60 FR 55171, October 27, 1995).
B. Regulatory Flexibility Act
The interim rule may have a significant economic impact on a
substantial number of small entities within the meaning of the
Regulatory Flexibility Act, 5 U.S.C. 601 et seq., because it provides
for a simpler, less expensive means of resolving agency protests. An
Initial Regulatory Flexibility Analysis (IRFA) has been prepared and
will be provided to the Chief Counsel for Advocacy of the Small
Business Administration. A copy of the IRFA may be obtained from the
FAR Secretariat. Comments are invited. Comments from small entities
concerning the affected FAR subpart will be considered in accordance
with 5 U.S.C. 610. Such comments must be submitted separately and cite
5 U.S.C. 601, et seq. (FAC 90-40, FAR Case 95-309), in correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the changes to
the FAR do not impose recordkeeping or information collection
requirements, or collections of information from offerors, contractors,
or members of the public which require the approval of the Office of
Management and Budget under 44 U.S.C. 3501, et seq.
D. Determination to Issue an Interim Rule
A determination has been made under the authority of the Secretary
of Defense (DOD), the Administrator of General Services (GSA), and the
Administrator of the National Aeronautics and Space Administration
(NASA) that compelling reasons exist to promulgate this interim rule
without prior opportunity for public comment. This action is necessary
in order to implement Executive Order 12979, Agency Procurement
Protests, which required incorporation of its policies into the Federal
Acquisition Regulation by April 22, 1996. However, pursuant to Public
Law 98-577 and FAR 1.501, public comments received in response to this
interim rule will be considered in the formation of the final rule.
List of Subjects in 48 CFR Part 33
Government procurement.
Dated: July 16, 1996.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.
Therefore, 48 CFR part 33 is amended as set forth below:
PART 33--PROTESTS, DISPUTES AND APPEALS
1. The authority citation for 48 CFR part 33 continues to read as
follows:
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
2. Section 33.103 is revised to read as follows:
33.103 Protests to the agency.
(a) Reference. Executive Order 12979, Agency Procurement Protests,
establishes policy on agency procurement protests.
(b) Prior to submission of an agency protest, all parties shall use
their best efforts to resolve concerns raised by an interested party at
the contracting officer level through open and frank discussions.
(c) The agency should provide for inexpensive, informal,
procedurally simple, and expeditious resolution of protests. Where
appropriate and permitted by law, the use of alternative dispute
resolution techniques, third party neutrals, and another agency's
personnel are acceptable protest resolution methods.
(d) The following procedures are established to resolve agency
protests effectively, to build confidence in the Government's
acquisition system, and to reduce protests outside of the agency:
(1) Protests shall be concise and logically presented to facilitate
review by the agency. Failure to substantially comply with any of the
requirements of paragraph (d)(2) of this section may be grounds for
dismissal of the protest.
(2) Protests shall include the following information:
(i) Name, address, fax number, and telephone number of the
protester.
(ii) Solicitation or contract number.
(iii) Detailed statement of the legal and factual grounds for the
protest, to include a description of resulting prejudice to the
protester.
(iv) Copies of relevant documents.
(v) Request for a ruling by the agency.
(vi) Statement as to the form of relief requested.
(vii) All information establishing that the protester is an
interested party for the purpose of filing a protest.
(viii) All information establishing the timeliness of the protest.
(3) All protests filed directly with the agency will be addressed
to the
[[Page 39220]]
contracting officer or other official designated to receive protests.
(4) Interested parties may request an independent review at a level
above the contracting officer, of any decision by the contracting
officer that is alleged to have violated a statute or regulation and
thereby caused prejudice to the offeror. This independent review need
not be established within the contracting officer's supervisory chain.
(e) Protests based on alleged apparent improprieties in a
solicitation shall be filed before bid opening or the closing date for
receipt of proposals. In all other cases, protests shall be filed no
later than 14 days after the basis of protest is known or should have
been known, whichever is earlier. The agency, for good cause shown, or
where it determines that a protest raises issues significant to the
agency's acquisition system, may consider the merits of any protest
which is not timely filed.
(f) Action upon receipt of protest. (1) Upon receipt of a protest
before award, a contract may not be awarded, pending resolution of the
protest, unless contract award is justified, in writing, for urgent and
compelling reasons or is determined, in writing, to be in the best
interest of the Government. Such justification or determination shall
be approved at a level above the contracting officer, or by another
official pursuant to agency procedures.
(2) If award is withheld pending resolution of the protest, the
contracting officer will inform the offerors whose offers might become
eligible for award of the contract. If appropriate, the offerors should
be requested, before expiration of the time for acceptance of their
offers, to extend the time for acceptance to avoid the need for
resolicitation. In the event of failure to obtain such extension of
offers, consideration should be given to proceeding with award pursuant
to paragraph (f)(1) of this section.
(3) Upon receipt of a protest within 10 days after contract award
or within 5 days after a debriefing date offered to the protester under
a timely debriefing request in accordance with 15.1004, whichever is
later, the contracting officer shall immediately suspend performance,
pending resolution of the protest within the agency, including any
review by an independent higher level official, unless continued
performance is justified, in writing, for urgent and compelling reasons
or is determined, in writing, to be in the best interest of the
Government. Such justification or determination shall be approved at a
level above the contracting officer, or by another official pursuant to
agency procedures.
(g) Agencies shall make their best efforts to resolve agency
protests within 35 days after the protest is filed.
(h) Agency protest decisions shall be well-reasoned, and shall
provide sufficient factual detail explaining the agency position. A
copy of the written protest decision shall be furnished to the
protester. A method that provides evidence of receipt should be used.
[FR Doc. 96-18510 Filed 7-25-96; 8:45 am]
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