General Accounting Office; Administrative Practice and Procedure, Bid Protest Regulations, Government Contracts

Proposed Rules

Federal Register

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Proposed Rules

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.

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

ll 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

eral 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

ime 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 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

elieves 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.

ons.

(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.

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.

,

(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

procedures for filing and handling the information.

mission. 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

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.

ial

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.

rmitted 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

efore 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.

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.

horized 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

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.

st

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.

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:

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).

ss

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).

lly

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

decision to proceed with award or to continue contract

performance. The requirements are included here for informational

purposes.

sion 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

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.

ble 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.

rt 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.

n, 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.

tion 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.

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.

(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.

rotest

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.

(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.

de 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.

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]

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