[Federal Register Volume 73, Number 237 (Tuesday, December 9, 2008)]
[Rules and Regulations]
[Pages 74613-74615]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-29061]
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GENERAL SERVICES ADMINISTRATION
48 CFR Parts 533 and 552
[GSAR Amendment 2008-03; GSAR Case 2007-G501;Docket 2008-0007; Sequence
1 (Change 24)]
RIN 3090-AI49
General Services Administration Acquisition Regulation; GSAR Case
2007-G501, Protests, Disputes, and Appeals
AGENCIES: General Services Administration (GSA), Office of the Chief
Acquisition Officer.
ACTION: Final rule.
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SUMMARY: The General Services Administration (GSA) is amending the
General Services Administration Acquisition Regulation (GSAR) by
updating language pertaining to protests, disputes, and appeals.
DATES: Effective Date: January 8, 2009.
FOR FURTHER INFORMATION CONTACT: For clarification of content, contact
Ms. Meredith Murphy at (202) 208-6925, or by e-mail at
[email protected]. For information pertaining to the status or
publication schedules, contact the Regulatory Secretariat (VPR), Room
4041, GS Building, Washington, DC 20405, (202) 501-4755. Please cite
Amendment 2005-03, GSAR case 2007-G501 (Change 24).
SUPPLEMENTARY INFORMATION:
A. Background
The General Services Administration (GSA) is amending the General
Services Administration Acquisition Regulation (GSAR) to update the
text addressing protests, disputes, and appeals. This rule is a result
of the General Services Administration Acquisition Manual (GSAM)
rewrite initiative undertaken by GSA to revise the GSAM to maintain
consistency with the FAR and implement streamlined and innovative
acquisition procedures that contractors, offerors, and GSA contracting
personnel can utilize when entering into and administering contractual
relationships. The GSAM incorporates the GSAR as well as internal
agency acquisition policy.
GSA will rewrite each part of the GSAR and GSAM, and as each GSAR
part is rewritten, will publish it in the Federal Register.
This rule covers the rewrite of GSAR Part 533, Protests, Disputes,
and Appeals. A proposed rule was published in the Federal Register at
73 FR 32514 on June 9, 2008. No comments were received in response to
the
[[Page 74614]]
proposed rule. Subsequent to the close of the comment period, the GSA
Office of General Counsel proposed to reinstate some material from the
clause at 552.233-70, Protests Filed Directly with the General Services
Administration, as text coverage at a new subsection, 533.103-1. The
language was added at the recommendation of the Office of General
Counsel to clarify GSA's rules in the context of the FAR process. This
is the only change in the final version of GSAR Part 533 from the
proposed rule.
The revised GSAR no longer includes the two clauses and associated
prescriptions for Part 533. The GSA-unique utilities disputes clause
and prescription were deleted at the request of the Public Buildings
Service (PBS). The GSA-unique clause, 552.233-70, Protests Filed
Directly with the General Services Administration, and its
prescription, were also deleted, because the clause merely repeated
much of the associated FAR clause.
Editorial changes were made to GSAR section 533.211, Contracting
officer's decision, so as not to repeat the information that must be
included, as prescribed in FAR 33.211, to clarify the GSA-unique
requirements, and to recognize that the GSBCA's duties are now vested
in the Civilian Board of Contract Appeals (CSBA). Material from Subpart
533.70, Processing Contract Appeals, was determined to be implementing,
not supplementing, the FAR, and it was moved into Subpart 533.2.
This is not a significant regulatory action and, therefore, was not
subject to review under Section 6(b) of Executive Order 12866,
Regulatory Planning and Review, dated September 30, 1993. This rule is
not a major rule under 5 U.S.C. 804.
B. Regulatory Flexibility Act
The General Services Administration does not expect this final rule
to have a significant economic impact on a substantial number of small
entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C.
601, et seq., because this rule will only affect an offeror that is
submitting a protest or has a dispute with GSA. Further, GSA is making
only minor changes in the regulations and procedures for pursuing
either action. For these reasons, it is expected that the number of
entities impacted by this rule will be minimal. Therefore, a Regulatory
Flexibility Analysis was not performed.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the changes to
the GSAR do not impose recordkeeping or information collection
requirements that require approval ofthe Office of Management and
Budget under 44 U.S.C. 3501, et seq.
List of Subjects in 48 CFR Parts 533 and 552
Government procurement.
Dated: October 30, 2008
David A. Drabkin,
Senior Procurement Executive,Office of the Chief Acquisition Officer,
General Services Administration.
0
Therefore, GSA amends 48 CFR parts 533 and 552 as set forth below:
PART 533--PROTESTS, DISPUTES, AND APPEALS
0
1. The authority citation for 48 CFR part 533 is revised to read as
follows:
Authority: 40 U.S.C. 121(c).
0
2. Add section 533.103-1 to read as follows:
533.103-1 Filing a protest.
(a) Any protester filing an agency protest has the choice of
requesting either that the contracting officer or the Agency Protest
Official decide the protest. If the protest is silent on this matter,
the contracting officer will decide the protest. If a party requests a
review at a level above the contracting officer, the Agency Protest
Official will decide the protest. The decision by the Agency Protest
Official for GSA is an alternative to a decision by the contracting
officer on a protest. The Agency Protest Official for GSA will not
consider an appeal of the contracting officer's decision on an agency
protest.
(b) If an agency protest is filed, the deciding official uses the
procedures in FAR 33.103 and this section to resolve the protest. The
deciding official will provide a fair and quick review of any protest
filed with the agency.
(c) The filing timeframes in FAR 33.103(e) apply. An agency protest
is filed when the complete protest is received at the location the
solicitation designates for serving protests. GSA's hours of operation
are 8 a.m. to 4:30 p.m. Protests delivered after 4:30 p.m. will be
considered received and filed the following business day.
(d) The protest must meet all the following conditions:
(1) Include the information required by FAR 33.103(d)(2).
(2) Indicate that it is a protest to the agency.
(3) Be filed in writing with the contracting officer.
(4) State whether the protester chooses to have the contracting
officer or the Agency Protest Official decide the protest. If the
protest does not include the protester's choice, then the contracting
officer will decide the protest (see paragraph (a) of this subsection).
(e) The following procedures apply to information submitted in
support of or in response to an agency protest:
(1) GSA procedures do not provide for any discovery.
(2) The deciding official has discretion to request additional
information from either the agency or the protester, orally or in
writing, as may be necessary to render a timely decision on the
protest. However, protests are normally decided on the basis of
information initially provided by the protester and the agency.
(3) To the extent permitted by law and regulations, the parties may
exchange relevant information.
(4) The agency must make a written response to the protest within
ten days unless another date is set by the deciding official.
(5) The agency must also provide the protester with a copy of the
response on the same day it files the protest response with the
deciding official. If the agency believes it needs to redact or
withhold any information in the response from the protester, it should
identify and provide the information to the deciding official for in
camera review.
(f) A protester may represent itself or be represented by legal
counsel. GSA will not reimburse the protester for any legal fees
related to the agency protest.
(g) GSA may dismiss or stay proceedings on an agency protest if a
protest on the same or similar basis is filed with a protest forum
outside of GSA.
533.103-72 [Removed]
0
3. Remove section 533.103-72.
533.209 [Added]
0
4. Add section 533.209 to read as follows:
533.209 Suspected fraudulent claims.
In GSA, the agency official responsible for investigating fraud is
the Office of Inspector General.
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5. Revise section 533.211 to read as follows:
533.211 Contracting officer's decision.
The contracting officer's written decision must include the
paragraph at FAR 33.211(a)(4)(v). The contracting officer shall state
in the decision that a contractor's notice of appeal to the Civilian
Board of Contract Appeals (CBCA) should include a copy of the
contracting officer's decision.
[[Page 74615]]
533.215 [Removed]
0
6. Remove section 533.215.
PART 552--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
7. The authority citation for 48 CFR part 552 continues to read as
follows:
Authority: 40 U.S.C. 121(c).
552.233-70 and 552.233-71 [Removed]
0
8. Remove sections 552.233-70 and 552.233-71.
[FR Doc. E8-29061 Filed 12-8-08; 8:45 am]
BILLING CODE 6820-61-S