Federal Acquisition Regulation; Protests to GAO

DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Part 33

[FAC 97-03; FAR Case 97-009; Item X]

RIN 9000-AH81

Federal Acquisition Regulation; Protests to GAO

AGENCIES: Department of Defense (DoD), General Services Administration

(GSA), and National Aeronautics and Space Administration (NASA).

ACTION: Final rule.

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SUMMARY: The Civilian Agency Acquisition Council and the Defense

Acquisition Regulations Council have agreed on a final rule amending

the Federal Acquisition Regulation (FAR) to conform with revisions to

the General Accounting Office (GAO) Bid Protest Regulations. 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.

EFFECTIVE DATE: February 9, 1998.

FOR FURTHER INFORMATION CONTACT: The FAR Secretariat, Room 4035, GS

Building, Washington, DC 20405, (202) 501-4755, for information

pertaining to status or publication schedules. For clarification of

content, contact Mr. Jack O'Neill, Procurement Analyst, at (202) 501-

3856. Please cite FAC 97-03, FAR case 97-009.

SUPPLEMENTARY INFORMATION:

A. Background

The GAO published a final rule amending its Bid Protest Regulations

in the Federal Register on July 26, 1996 (61 FR 39039). Several

conforming amendments to FAR Part 33 are necessary to reflect the

current GAO Bid Protest Regulations. The definition of ``day'' in FAR

33.101 is amended to exclude Saturdays, Sundays, and Federal holidays

from being counted if such day is the last day of the period after the

act, event, or default. FAR 33.104 is amended to require agencies to

include a best estimate of the contract value in an agency report of a

protest; and to require agencies to provide to all parties, at least 5

days prior to the filing of a report, a list of documents the agency

intends to release or withhold, and reasons for proposed withholding.

The time within which agencies are required to provide additional

documents requested by a protester is reduced from 5 to 2 days. The

time within which protesters or other interested parties are required

to furnish comments on an agency report is reduced from 14 to 10 days,

or from 7 to 5 days if an express option is used; or, if a hearing is

held, from 7 to 5 days. Language is added to require a protester to

file its claim for costs with the contracting agency within 60 days

after receipt of GAO's recommendation that the agency pay the protester

its costs.

B. Regulatory Flexibility Act

The final rule does not constitute a significant FAR revision

within the meaning of FAR 1.501 and Public Law 98-577, and publication

for public comments is not required. However, 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 should cite 5 U.S.C. 601, et seq. (FAC 97-03, FAR case

97-009), 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.

List of Subjects in 48 CFR Part 33

Government procurement.

Dated: December 1, 1997.

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).

33.101 [Amended]

2. Section 33.101 is amended in paragraph (b)(1) under the

definition of ``Day'' by removing the word ``legal'' and inserting

``Federal'' in its place; and by removing paragraph (c).

3. Section 33.104 is amended by--

a. Redesignating (a)(3)(iii) as (a)(3)(iv), and adding a new

(a)(3)(iii);

b. Revising newly designated (a)(3)(iv)(B); removing (a)(3)(iv)(C);

redesignating (a)(3)(iv)(D) as (a)(3)(iv)(C);

c. Replacing ``5'' with ``2'' in paragraphs (a)(4)(ii)(A) and

(a)(4)(ii)(B);

d. Replacing ``14'' with ``10'' and ``7'' with ``5'' each time it

appears in paragraph (a)(6);

e. Adding ``the agency'' before the word ``report'' in the third

sentence of paragraph (e);

f. Revising paragraph (h) to read as follows:

33.104 Protests to GAO.

* * * * *

(a) * * *

(3) * * *

(iii) 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 the GAO a list of those

documents, or portions of documents, that the agency has released to

the protester or intends to produce in its report, and those documents

that 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 the documents must be

filed with the GAO and the other parties within 2 days after receipt of

this list.

(iv) * * *

(A) * * *

(B) The contracting officer's signed statement of relevant facts,

including a best estimate of the contract value, and a memorandum of

law. The contracting officer's statement shall set forth findings,

actions, and recommendations, and any additional evidence or

information not provided in the protest

[[Page 64934]]

file that may be necessary to determine the merits of the protest; and

* * * * *

(h) Award of costs. (1) If the GAO determines that a solicitation

for a contract, a proposed award, or an award of a contract does not

comply with a statute or regulation, the GAO may recommend that the

agency pay to an appropriate protester the cost, exclusive of profit,

of filing and pursuing the protest, including reasonable attorney,

consultant, and expert witness fees, and bid and proposal preparation

costs. The agency shall use funds available for the procurement to pay

the costs awarded.

(2) The protester shall file its claim for costs with the

contracting agency within 60 days after receipt of the 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.

(3) The agency shall attempt to reach an agreement on the amount of

costs to be paid. If the agency and the protester are unable to agree

on the amount to be paid, the GAO may, upon request of the protester,

recommend to the agency the amount of costs that the agency should pay.

(4) Within 60 days after the GAO recommends the amount of costs the

agency should pay the protester, the agency shall notify the GAO of the

action taken by the agency in response to the recommendation.

(5) No agency shall pay a party, other than a small business

concern within the meaning of section 3(a) of the Small Business Act

(see 19.001, ``Small business concern''), costs under paragraph (h)(2)

of this section

(i) For consultant and expert witness fees that exceed the highest

rate of compensation for expert witnesses paid by the Government

pursuant to 5 U.S.C. 3109 and 5 CFR 304.105; or

(ii) For attorney's fees that exceed $150 per hour, unless the

agency determines, based on the recommendation of the Comptroller

General on a case-by-case basis, that an increase in the cost of living

or a special factor, such as the limited availability of qualified

attorneys for the proceedings involved, justifies a higher fee. The cap

placed on attorneys' fees for businesses, other than small businesses,

constitutes a benchmark as to a ``reasonable'' level for attorney's

fees for small businesses.

(6) Before paying a recommended award of costs, agency personnel

should consult legal counsel. Section 33.104(h) applies to all

recommended awards of costs that have not yet been paid.

(7) Any costs the contractor receives under this section shall not

be the subject of subsequent proposals, billings, or claims against the

Government, and those exclusions should be reflected in the cost

agreement.

(8) If the Government pays costs, as provided in paragraph (h)(1)

of this section, where a postaward protest is sustained as the result

of an awardee's intentional or negligent misstatement,

misrepresentation, or miscertification, the Government may require the

awardee to reimburse the Government the amount of such costs. In

addition to any other remedy available, and pursuant to the

requirements of subpart 32.6, the Government may collect this debt by

offsetting the amount against any payment due the awardee under any

contract between the awardee and the Government.

[FR Doc. 97-31823 Filed 12-8-97; 8:45 am]

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