[Federal Register Volume 61, Number 145 (Friday, July 26, 1996)]
[Rules and Regulations]
[Pages 39039-39047]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19014]
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Rules and Regulations
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Federal Register / Vol. 61, No. 145 / Friday, July 26, 1996 / Rules
and Regulations
[[Page 39039]]
GENERAL ACCOUNTING OFFICE
4 CFR Part 21
General Accounting Office, Administrative Practice and Procedure,
Bid Protest Regulations, Government Contracts
AGENCY: General Accounting Office.
ACTION: Final rule.
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SUMMARY: The General Accounting Office (GAO) is amending its Bid
Protest Regulations after receiving and considering the comments on the
advance notice of proposed rulemaking published on February 21, 1996,
and the proposed rule published on May 1, 1996. The final rule
implements the requirement in the National Defense Authorization Act
for Fiscal Year 1996 that GAO, for new protests filed on or after
August 8, 1996, issue bid protest decisions within 100 calendar days
from the time a protest is filed at GAO. The final rule will facilitate
GAO's meeting the new statutory deadline for issuing bid protest
decisions and will enhance the efficiency and effectiveness of the bid
protest process at GAO.
EFFECTIVE DATE: August 8, 1996.
FOR FURTHER INFORMATION CONTACT: Michael R. Golden (Assistant General
Counsel) or Linda S. Lebowitz (Senior Attorney), 202-512-9732.
SUPPLEMENTARY INFORMATION:
Effective Dates
Protests filed at GAO prior to the effective date of this final
rule will be considered under the previous rule published at 60 FR
40737 on August 10, 1995. That previous rule will also apply to (1)
protests filed on or after the effective date of this rule which
supplement or amend a protest filed at GAO prior to the effective date
of this rule and (2) claims and requests for reconsideration filed on
or after the effective date of this rule which concern a protest which
was considered under the previous rule.
Background
On February 21, 1996, GAO published an advance notice of proposed
rulemaking (61 FR 6579) soliciting comments on how its bid protest
procedures could be revised to facilitate GAO's meeting, effective
August 8, 1996, the new 100-calendar-day statutory deadline (which
shortens the former 125-calendar-day deadline) for issuing bid protest
decisions, as required by the National Defense Authorization Act for
Fiscal Year 1996, Pub. L. 104-106, 110 Stat. 186, enacted on February
10, 1996. (Further reference to ``days'' means calendar days.) GAO
invited comments addressing changing GAO's longstanding timeliness
rules to link the timely filing of a protest with a statutorily
required debriefing and on facilitating the expeditious resolution of
protests through the use of early document production. In addition, GAO
invited suggestions concerning the appropriate length of regulatorily
imposed deadlines and the use of accelerated or alternative procedures
to more expeditiously resolve bid protests.
In preparing the proposed rule, published on May 1, 1996 (61 FR
19205), GAO considered the written comments received in response to the
advance notice. These comments generally recognized our previous
efforts, as reflected in the final rule published on August 10, 1995
(60 FR 40737) and effective October 1, 1995, to streamline the bid
protest process at GAO and to provide meaningful relief to vendors
wrongfully harmed during the conduct of a procurement. The commenters
also suggested ways in which the internal management of GAO's bid
protest process could be enhanced.
Summary of Comments
Interested persons were invited to submit comments on GAO's
proposed rule by July 1, 1996. We received written comments from 13
Federal agencies, 2 bar associations, 2 industry associations, and 1
law firm. In adopting this final rule, we have carefully considered all
comments received. The commenters generally acknowledged GAO's efforts
to shorten regulatorily imposed deadlines in order to streamline and
expedite the bid protest process to meet the 100-day deadline for
issuing bid protest decisions and to help implement congressional
intent to shorten the length of the procurement cycle.
GAO has also enhanced ongoing internal initiatives to facilitate
the proactive management of cases and to accelerate the development and
resolution of bid protests. For example, we have adopted procedures to
simultaneously issue acknowledgment notices and protective orders in
appropriate cases; to identify shortly after a protest is filed those
cases in which a hearing appears likely to be appropriate; to encourage
the use of accelerated schedules, in lieu of invoking the express
option; to promote the expeditious resolution of summary dismissal
requests; and to encourage the use of status and other conferences. We
believe that regulatorily imposed improvements combined with proactive
management of cases will enable GAO to routinely issue a fully
developed decision resolving all issues raised in a protest within the
100-day deadline so that the protest does not unnecessarily delay the
procurement cycle.
A discussion of the more significant comments concerning GAO's
proposed rule, and our responses to these comments, are set forth
below.
Section 21.0--Definitions
Several commenters supported our proposal to prescribe procedures
for the uniform computation of ``days'' for all periods, including bid
protest filing periods and stay periods. In the proposed rule, we added
language to paragraph (e) of Sec. 21.0 which provides that in computing
any period of time described in Subchapter V, Chapter 35 of Title 31,
United States Code, the day from which the period begins to run will
not be counted, and that when the last day of the period falls on a
Saturday, Sunday, or Federal holiday, the period will extend to the
next day that is not a Saturday, Sunday, or Federal holiday. GAO adopts
the language as proposed. We believe that periods of time in the bid
protest system should be uniformly counted.
Section 21.1--Filing a Protest
To ensure that protesters focus their document and hearing
requests, in the proposed rule we added language to Sec. 21.1(d)(2)
which makes clear that when a protester makes a document request, the
protester must also explain
[[Page 39040]]
why the documents requested are relevant to the protest. The proposed
language was supported by the commenters, and is adopted as proposed.
We believe this requirement will assist GAO and the parties to identify
those documents which are material to the disposition of the protest.
Similarly, we added language in the proposed rule to
Sec. 21.1(d)(3) which makes clear that when a protester requests a
hearing, the protester must also provide an explanation of why it
believes a hearing is necessary to resolve the protest. The proposed
language was supported by the commenters, and is adopted as proposed.
We think this requirement will assist GAO and the parties to identify
early in the protest process those cases in which a hearing appears to
be appropriate.
In response to a commenter's suggestion, we have added language to
paragraph (g) of Sec. 21.1 which makes clear the requirement that a
protester file the redacted copy of its protest with GAO and the agency
within 1 day after it files its unredacted protest with GAO. The
requirement ensures that an agency can expeditiously provide the
redacted copy of the protest to any intervenors.
Section 21.2--Time for Filing
We received numerous comments concerning the language in paragraph
(a)(2) of Sec. 21.2 in the proposed rule linking the timely filing of a
protest with a statutorily required debriefing, that is, a debriefing
which is ``requested and, when requested, is required.'' In the
proposed rule, we expressly linked our timeliness rule to the statutory
debriefing and stay provision of the Federal Acquisition Streamlining
Act of 1994 (FASA), Pub. L. 103-355, 108 Stat. 3243, enacted on October
13, 1994. As explained, we believed such linkage would be consistent
with congressional intent that a vendor receive a statutorily required
debriefing before deciding whether or not to file a protest. The
proposed linkage would have provided a uniform rule and practice--by
filing a protest within 5 days of a statutorily required debriefing, a
protest would be timely for bid protest purposes and the protester
would be entitled to a stay.
The commenters were generally receptive to the linkage concept, but
suggested various ways to clarify the proposed language. After
considering all of these proposals, we have replaced the proposed
language with the following language: ``Protests other than those
covered by paragraph (a)(1) of this section shall be filed not later
than 10 days 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.''
This provision leaves intact GAO's longstanding timeliness rule
that protests challenging an award made using sealed bidding
procedures, protests raising supplemental/amended issues, and protests
based on information which was independently obtained after a
statutorily required debriefing must be filed within 10 days (formerly
14 days) after the basis of protest is known or should have been known,
whichever is earlier. In the final rule, we have adopted 10 days (not 5
days as proposed) as the basis for calculating most protest (and other)
filing periods consistent with the goal of making our bid protest
process as simple and straightforward as possible.
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.
In adopting the 10-day timeliness rule, we recognize the concerns
of those commenters who point out that shortening in any circumstances
GAO's requirement for a timely filed protest from the former 14 days to
the proposed 5 days would seriously diminish access to potential
protesters who are accustomed to working with the 14-day requirement.
At the same time, we recognize other commenters' legitimate concerns
that the protest cycle be as short as feasible and, in the era of
facsimile transmissions and express delivery services, 14 days is a
disproportionately long period of time to allow vendors to file a
protest. We think the 10-day timeliness rule adopted in this final rule
strikes the appropriate balance between the comments that potential
protesters should have time to prepare and file a well-considered
protest, and other comments that the addition of a full 2-week period
to the overall 100-day bid protest period is not consistent with the
congressional goal of an expeditious bid protest system.
Moreover, to address concerns regarding strategic or defensive
protests, and to encourage early and meaningful debriefings, GAO
provides in paragraph (a)(2) of Sec. 21.2 that protesters shall not
file an initial protest prior to the debriefing date offered to the
protester, but must file the initial protest not later than 10 days
after the date on which the debriefing is held. In order to administer
this rule, our Office may close a file without prejudice on any protest
which has been filed before a statutorily required debriefing, upon
appropriate notice by an agency that the statutorily required
debriefing date has been offered. We anticipate that this debriefing
will normally occur on the first date offered by the agency. However,
in the event that the agency subsequently agrees to another date, the
debriefing held on that date will be used as the basis for determining
the timeliness of the protest. While we recognize that this places a
potential burden on an agency's procurement cycle time, the agency has
within its control the ability to minimize this period by offering
early and meaningful debriefings consistent with congressional intent.
The adoption of a uniform 10-day timeliness rule provides for easy
calculation of protest filing periods and substantially maintains the
basic timeliness rule which has been in effect at GAO since 1975. This
10-day rule reflects a compromise which balances the legitimate
competing interests and concerns of all parties. Under this rule and
consistent with the statutory language in FASA, a protester may file a
timely protest on any issue within 5 days of a statutorily required
debriefing, as well as obtain a stay, thus eliminating the existing
anomaly that a protester may be eligible for a stay based on a filing
which does not constitute a timely protest. However, potential
protesters should be aware that, even after this compromise (and as is
currently also the case), a protester's initial filing may qualify as a
timely protest, but may not entitle the protester to a stay.
Nevertheless, a protester's opportunity to obtain meaningful review at
GAO will be maintained.
In paragraph (a)(3) of Sec. 21.2 in the proposed rule, we required
that any subsequent protest to our Office following a protester's
actual or constructive knowledge of initial adverse agency action on
its agency-level protest be filed within 5 days. While this 5-day
period was supported by several commenters, other commenters expressed
concern that this proposed filing period was too short and would not
provide protesters with sufficient time to consider an agency's
decision regarding the agency-level
[[Page 39041]]
protest and to decide whether to file a subsequent protest, which may
raise new issues, with GAO. We are adopting 10 days as the time period
for filing a subsequent protest with GAO following a protester's
knowledge of initial adverse agency action on its agency level protest
to help ensure that the protester's decision regarding the filing of
such a protest is well considered.
We have removed paragraph (a)(4) of Sec. 21.2 in the proposed rule
which required that supplemental or amended protests be filed within 5
days after the basis of protest is known or should have been known,
whichever is earlier. By removing the proposed language, we will
continue to require that supplemental or amended protests be filed in
accordance with the basic ``knew/should have known'' timeliness rule
which, as adopted in this final rule, is 10 days.
In addition, several commenters suggested that the time period for
filing supplemental or amended protests be aligned with the 10-day time
period for filing comments (the proposed language in paragraph (i) of
Sec. 21.3 is adopted) since we might consider arguments made in
comments to be new protest issues which would need to independently
satisfy GAO's timeliness rules. In light of this concern and consistent
with the desire to calculate protest and other filing periods in a
simple, straightforward manner, the time periods for filing
supplemental or amended protests and comments will be concurrent,
thereby achieving the ``bright line'' rule desired by the commenters.
Finally, a few commenters have expressed a concern that our
timeliness rules conflict with the 10-working-day timeliness
requirement contained in the North American Free Trade Agreement
(NAFTA). Since the effective date of NAFTA implementation, we have not
received a protest under the NAFTA rules. When NAFTA was implemented,
we consulted the United States Trade Representative who advised that
the minor inconsistency between NAFTA's and GAO's timeliness
requirements would not pose any problems. We are cognizant of the
inconsistency and believe that, because of the flexibility of our
timeliness rules, we will be able to afford a NAFTA protester all
treaty rights for purposes of the timely filing of a protest.
Section 21.3--Notice of Protest, Submission of Agency Report, and Time
for Filing of Comments on Report
Consistent with the requirement in the National Defense
Authorization Act for Fiscal Year 1996, GAO adopts the language as
proposed in paragraph (c) of Sec. 21.3 concerning the new 30-day time
period for filing the agency report (shortening the former 35-day
requirement) after telephone notice of the protest from GAO.
In response to suggestions from commenters that GAO encourage the
filing of relevant documents prior to the filing of the agency report,
GAO adopts the language as proposed in paragraph (c) of Sec. 21.3 to
explicitly recognize that documents may be provided prior to the filing
of the agency report or may otherwise be made available to the parties,
such as by allowing parties to review documents on site at the agency
prior to the filing of the report. As previously discussed in the final
rule at 60 FR 40737, 40738, we believe that in appropriate cases, an
agency's voluntary production of documents prior to the filing of its
agency report will facilitate the prompt resolution of the protest and
result in other system efficiencies.
In light of the shortened timeframe for resolving all protest
issues, GAO believes it is critical to resolve document disputes prior
to the filing of the agency report in order to avoid extending a
protester's comment period or affording a protester an opportunity to
file supplemental comments in response to the piecemeal release of
additional documents. For this reason, GAO adopts the language proposed
in paragraph (c) of Sec. 21.3 requiring that at least 5 days prior to
the filing of the agency report, in protests where specific documents
material to the disposition of the protest have been requested, the
agency 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 those documents which the
agency intends to withhold from the protester and the reasons for the
proposed withholding. GAO believes this list will facilitate the
expeditious resolution of document disputes and ultimately the protest
itself. We decline to adopt the suggestion of some commenters that a
list be produced in all cases (including those cases where specific
documents have not been requested) because we believe such a
requirement would unduly burden the agencies without providing
corresponding benefits to the bid protest process.
Several commenters suggested that the proposed 1-day period for
filing objections with GAO and the other parties regarding the scope of
the agency's proposed disclosure/nondisclosure of documents after
receipt of the list should be at least 2 days. GAO adopts the
suggestion of these commenters by changing the language in paragraph
(c) of Sec. 21.3 making clear that any objection to the scope of the
agency's proposed disclosure/nondisclosure of documents be filed within
2 days after receipt of the list.
GAO adopts the proposed language, ``documents, or portions of
documents,'' throughout Sec. 21.3 which clarifies and reflects current
longstanding practice that parties need not provide entire documents if
only certain parts of the documents are relevant to the issues raised
in the protest.
One commenter expressed concern that agency reports for overseas
procurements often cannot be filed within the 30-day statutory period.
This difficulty is already provided for in redesignated paragraph (f)
of Sec. 21.3. (The proposed rule divided former paragraph (c) of
Sec. 21.3 into 2 parts, creating a new paragraph (d) in this section
and redesignating the subsequent paragraphs in this section.) In such
cases, consistent with current practice, an agency may request an
extension of time for filing the agency report. In response to another
commenter's concern, GAO has added language to paragraph (f) of
Sec. 21.3 to permit an agency to also request an extension of time to
file the list of documents proposed for disclosure/nondisclosure.
In redesignated paragraph (g) of Sec. 21.3, GAO adopts the proposed
language which requires agencies to respond to supplemental document
requests within 2 days after the protester requests additional
documents. This 2-day period is equivalent to the period given to the
protester to request additional documents after their existence or
relevance first becomes evident following receipt of the agency report
and places the parties on a level playing field regarding the
respective filing periods for supplemental documents.
Several commenters have expressed the view that it is inappropriate
after the filing of comments on the agency report or hearing for
agencies and other parties to file unsolicited responses to such
comments. GAO adopts the language proposed in redesignated paragraph
(j) of Sec. 21.3 which provides that such additional responses shall
not be submitted unless GAO specifically requests them or specifically
grants permission for their submission. This requirement will ensure
that the period of time for closing the protest record is not
unnecessarily extended. The requirement is not, however, intended to
foreclose the submission of additional information from an agency or
other
[[Page 39042]]
parties when GAO believes that such input is appropriate.
Section 21.5--Protest Issues Not for Consideration
GAO adopts the language proposed in paragraph (d) of Sec. 21.5
concerning protests alleging a violation of subsection (a), (b), (c),
or (d) of sec. 27 of the Office of Federal Procurement Policy (OFPP)
Act, 41 U.S.C. 423, as amended by sec. 4304 of the National Defense
Authorization Act for Fiscal Year 1996. The statute requires that
potential protesters notify the agency concerned of a possible
procurement integrity violation within 14 days of discovering the
alleged violation before protesting the matter to GAO. The statutory
requirement reflected in paragraph (d) of Sec. 21.5 will become
effective on January 1, 1997, unless the requirement is implemented by
OFPP by an earlier date. Pending OFPP's implementation of this
requirement and consistent with current practice, GAO will continue to
consider protests of alleged procurement integrity violations whether
or not the protester has notified the agency prior to filing its
protest.
Section 21.7--Hearings
Consistent with current practice, GAO adopts the language as
proposed in paragraph (c) of Sec. 21.7 which explicitly recognizes that
hearings may be conducted by telephone. In paragraph (g) of Sec. 21.7,
GAO adopts the language as proposed which reduces the time for filing
consolidated comments on the agency report and hearing from 7 days to 5
days after the hearing. In those circumstances where more time to file
consolidated comments is necessary, GAO retains the flexibility to
extend the comment period.
Section 21.8--Remedies
Several commenters have expressed concern that the 90-day timeframe
for filing claims is too long. In paragraph (f)(1) of Sec. 21.8, GAO
has shortened the time for filing claims to 60 days. This change in the
final rule will expedite the process for resolving claims and
ultimately closing the contract file in a particular matter.
Section 21.9--Time for Decision by GAO
In accordance with the statutory requirement in the National
Defense Authorization Act for Fiscal Year 1996, GAO adopts the language
as proposed in paragraph (a) of Sec. 21.9 that a decision on a protest
be issued within 100 days after a protest is filed (shortening the
former 125-day requirement).
Section 21.10--Express Options, Flexible Alternative Procedures,
Accelerated Schedules, Summary Decisions, and Status and Other
Conferences
Several commenters have recognized GAO's use of flexible
alternative procedures to resolve bid protests, deeming such procedures
particularly useful in light of the shortened statutory deadline for
issuing decisions. GAO adopts the language as proposed in paragraph (e)
of Sec. 21.10 which specifically references as examples the use of
accelerated schedules and/or the issuance of summary decisions as
flexible alternative procedures which have been and will continue to be
used by GAO to promptly and fairly resolve protests.
Further, GAO adopts the language proposed in the new paragraph (f)
of Sec. 21.10 which, reflecting current practice, expressly provides
for conducting telephone or in person status and other conferences with
all protest parties to promote the expeditious development and
resolution of the protest. We added language to paragraph (f) of
Sec. 21.10 to recognize that other types of informal conferences may
also be held. For example, GAO has used status and other conferences to
resolve protective order admission objections, document disputes, and
summary dismissal requests; to discuss issues related to hearings; and
to obtain answers to questions which are relevant and material to the
disposition of the protest. GAO has found that the use of status and
other conferences benefits all parties to a protest. While some
commenters suggested that we include in this final rule a specific time
for conducting such conferences, we decline to add such language in
order to retain the flexibility to conduct these conferences at any
time during the process, thereby tailoring the conferences to the
circumstances of a particular case.
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 of the Code of Federal Regulations is amended 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 options, flexible alternative procedures, accelerated
schedules, summary decisions, and status and other conferences.
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 any period of time
described in Subchapter V, Chapter 35 of Title 31, 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
[[Page 39043]]
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.
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 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.
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) Protests other than those covered by paragraph (a)(1) of this
section shall be filed not later than 10 days 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 10 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 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.
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, 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
[[Page 39044]]
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 Sec. 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 Sec. 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.
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 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.
[[Page 39045]]
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
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, Public Law 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 14 days after the protester first discovered
the possible violation. The provision in paragraph (d) of Sec. 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 Sec. 21.2.
(f) Protests which lack a detailed statement of the legal and
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(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 Sec. 21.13.
Sec. 21.6 Withholding of award and suspension of contract performance.
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).
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 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.
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:
[[Page 39046]]
(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 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 100 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, 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 Sec. 21.10.
Sec. 21.10 Express options, flexible alternative procedures,
accelerated schedules, summary decisions, and status and other
conferences.
(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 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 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.
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 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 (Sec. 21.3(c)),
filing comments on the report (Sec. 21.3(i)), 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
[[Page 39047]]
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.
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
protests decided by GAO.
(b) The provisions of this part shall apply to nonstatutory
protests except for the provision of 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 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).
Robert P. Murphy,
General Counsel.
[FR Doc. 96-19014 Filed 7-25-96; 8:45 am]
BILLING CODE 1610-01-P
