[Federal Register Volume 73, Number 56 (Friday, March 21, 2008)]
[Proposed Rules]
[Pages 15098-15101]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-5621]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 73, No. 56 / Friday, March 21, 2008 /
Proposed Rules
[[Page 15098]]
GOVERNMENT ACCOUNTABILITY OFFICE
4 CFR Part 21
Government Accountability Office, Administrative Practice and
Procedure, Bid Protest Regulations, Government Contracts
AGENCY: Government Accountability Office.
ACTION: Proposed rule.
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SUMMARY: The Government Accountability Office (GAO) is proposing to
amend its Bid Protest Regulations, promulgated in accordance with the
Competition in Contracting Act of 1984 (CICA), to implement the
requirements in sec. 326 of the National Defense Authorization Act for
Fiscal Year 2008, enacted on January 28, 2008, and to make certain
administrative changes. Regarding sec. 326 of the National Defense
Authorization Act for Fiscal Year 2008, the proposed amendments to
GAO's Bid Protest Regulations implement the legislation's provisions
related to the bid protest process concerning Office of Management and
Budget (OMB) Circular A-76, as revised on May 29, 2003. In this regard,
the legislation expands the protest rights of Federal employees in an
A-76 competition to grant ``any one individual'' who represents the
majority of affected employees the status of an ``interested party'' to
file a protest at GAO or the status of an intervenor to participate in
a protest filed at GAO, to remove the current restriction limiting
protests of A-76 competitions to those competitions affecting 65 or
more full-time equivalent employees of a Federal agency, and to allow a
protest of a decision to convert a function performed by Federal
employees to private sector performance without a competition. At this
time, GAO believes that these proposed revisions are the only
regulatory changes necessary to implement the statutory requirements
expanding the protest rights of Federal employees in an A-76
competition. Regarding administrative changes, the proposed amendments
to GAO's Bid Protest Regulations are to reflect current practice and to
streamline the bid protest process. GAO welcomes comments on these
proposed revisions.
DATES: Comments must be submitted on or before April 21, 2008.
ADDRESSES: Comments may be submitted by e-mail at
[email protected] or by facsimile at 202-512-9749. Due to delivery
delays, submission by regular mail is discouraged. Comments may be sent
by Federal Express or United Parcel Service addressed to: Ralph O.
White, Assistant General Counsel, Government Accountability Office, 441
G Street, NW., Washington, DC 20548. GAO intends to make all comments
filed available to the public, including names and other identifying
information. Information in a submission that the sender does not
believe should be released should be clearly marked.
FOR FURTHER INFORMATION CONTACT: Michael R. Golden (Managing Associate
General Counsel), Ralph O. White (Assistant General Counsel) or
Jonathan L. Kang (Senior Attorney), 202-512-3315.
SUPPLEMENTARY INFORMATION:
Comments Invited
GAO is not subject to the Administrative Procedures Act and
accordingly is not required by law to seek comments before issuing a
final rule. However, GAO has decided to invite interested persons to
participate in this rulemaking by submitting written comments regarding
the proposed revisions. Application of the Administrative Procedures
Act to GAO is not to be inferred from this invitation for comments.
GAO will consider all comments received on or before the closing
date for comments. GAO may change the proposed revisions based on the
comments received.
Background
GAO determined to undertake these revisions to GAO's Bid Protest
Regulations as the result of statutory changes in GAO's bid protest
jurisdiction in the Department of Homeland Security Appropriations Act,
2008 (enacted as Division E of the Consolidated Appropriation Act,
2008, Pub. L. 110-161, 121 Stat. 1844, on December 26, 2007), and the
National Defense Authorization Act for Fiscal Year 2008. Section 568 of
the Department of Homeland Security Appropriations Act, 2008, made the
Transportation Security Administration (TSA) subject to the Federal
Acquisition Regulation such that, as of the June 23, 2008 effective
date, GAO has protest jurisdiction over TSA procurements. Section 326
of the National Defense Authorization Act for Fiscal Year 2008 expands
the protest rights of Federal employees in an A-76 competition or non-
competitive decision to convert a function performed by Federal
employees to private sector performance. Section 843 of the National
Defense Authorization Act for Fiscal Year 2008 amends GAO's
jurisdiction under 10 U.S.C. 2304c(e) and 41 U.S.C. 253j(e) to
authorize GAO to hear protests of the award or proposed award of
certain task and delivery orders under certain indefinite-delivery/
indefinite-quantity contracts.
After careful consideration, GAO concluded that no change in GAO's
Bid Protest Regulations is necessary in order to effectuate the
provisions of sec. 568 of the Department of Homeland Security
Appropriations Act, 2008, with respect to TSA procurements, or to
effectuate the provisions of sec. 843 of the National Defense
Authorization Act for Fiscal Year 2008, with respect to task or
delivery orders. The proposed revisions to GAO's Bid Protest
Regulations to implement sec. 326 of the National Defense Authorization
Act for Fiscal Year 2008 and to make certain administrative changes are
set forth below:
Interested Party
In accordance with sec. 326 of the National Defense Authorization
Act for 2008, GAO proposes to revise paragraph (a)(2) and to add new
paragraphs (a)(2)(A) and (a)(2)(B) to 4 CFR 21.0, to expand the
definition of an interested party to include, in any public-private
competition conducted under OMB Circular A-76 regarding performance of
an activity or function of a Federal agency, or any decision to convert
a function performed by Federal employees to private sector performance
without a competition under OMB Circular A-76, the official who
submitted the agency tender in any such
[[Page 15099]]
competition and any one individual designated as the representative of
the majority of affected Federal employees, and to delete the current
restrictions on protests of competitions concerning fewer than 65 full
time equivalent employees of a Federal agency.
Intervenor
In accordance with sec. 326 of the National Defense Authorization
Act for 2008, GAO proposes to revise paragraph (b)(2) of 4 CFR 21.0, to
expand the definition of an intervenor to include, in any public-
private competition conducted under OMB Circular A-76 regarding
performance of an activity or function of a Federal agency, or any
decision to convert a function performed by Federal employees to
private sector performance without a competition under OMB Circular A-
76, any one individual designated as the representative of the majority
of affected Federal employees, and to delete the current restrictions
on protests of competitions concerning fewer than 65 full time
equivalent employees of a Federal agency.
Contracting Agency
For administrative purposes, GAO proposes to delete the definition
of ``contracting agency'' at paragraph (d) of 4 CFR 21.0, and to
replace the term ``contracting agency'' with the term ``agency''
throughout 4 CFR 21. GAO also proposes to revise paragraph (c) of 4 CFR
21.0 to clarify that the definition of ``federal agency'' also applies
to the general term ``agency.'' It is the opinion of GAO that these
administrative changes will clarify and simplify GAO's Bid Protest
Regulations.
Filing of Documents
It has been GAO's experience that bid protest documents are
occasionally directed to GAO departments unrelated to GAO's bid protest
process. To clarify how a document is ``filed'' under GAO's Bid Protest
Regulations, GAO proposes to revise paragraph (g) of 4 CFR 21.0, newly
redesignated as paragraph (f), to provide GAO's designated facsimile
transmission number and email address for bid protests, and to advise
parties to check GAO's Web site to ensure that the contact information
is current. GAO also proposes to remove a provision in 4 CFR 21.0
regarding electronic filing to conform with current practice and to
coordinate with changes to paragraph (b) of 4 CFR 21.4, which are
discussed below.
Disclosure of Protest Materials
The GAO bid protest process is covered by the GAO disclosure of
materials regulations in 4 CFR part 81, subject to the restrictions of
our protective order process. To ensure that the practice of the GAO
bid protest process is consistent with the GAO disclosure of materials
regulations and to advise that the GAO will not generally provide filed
materials to the public while a protest is pending, GAO proposes to
revise paragraph (g) of 4 CFR 21.1 to reflect that GAO will disclose
protest materials submitted by any party after issuing a decision on
the protest, in accordance with GAO's rules at 4 CFR part 81 and the
protective order process.
Document Requests to Agencies
In cases in which the protester has filed a request for specific
documents, GAO's Bid Protest Regulations currently require that the
agency provide, at least 5 days prior to the filing of its report, a
list of the documents or portions of documents which the agency has
released to the protester or intends to produce in its report and of
the documents or portions of documents requested that it intends to
withhold, and the reasons for the proposed withholding. It is GAO's
experience that the index of documents provided by agencies is often
not sufficient to answer specific document requests and does not
identify what is being withheld and why. In order to clarify what GAO
requires from agencies in response to specific document requests, GAO
proposes to revise paragraph (c) of 4 CFR 21.3 to require that an
agency's response to a document request identify, at a minimum, whether
requested documents exist, which of the documents or portions of
documents the agency intends to produce, which of the documents or
portions of documents the agency intends to withhold, and the basis for
withholding any of the requested documents. GAO understands that this
proposed revision may be perceived by agencies as an additional
requirement; however, the language of the proposed revision tracks
closely to the original intent of GAO in 4 CFR 21.3(c).
Document Requests to Other Parties
GAO's Bid Protest Regulations currently limit document requests to
those made by the protester to the agency, and in certain
circumstances, by the agency to the protester. Due to GAO's statutory
requirement to complete bid protests within 100 days, and in the
interest of fairness, there may be circumstances in which documents
held by a party that are not in the possession of the agency are
necessary for the swift resolution of a bid protest. To permit parties
to make document requests of another party, GAO proposes to revise
paragraph (d) of 4 CFR 21.3, to state that, in appropriate
circumstances, one party may request that another party produce
documents that are not in the agency's possession and not currently in
the record. GAO does not expect these requests to arise often, and
retains the discretion to determine the appropriateness of granting
such requests.
Additional Statements
To reflect GAO practice, GAO proposes to revise paragraph (j) of 4
CFR 21.3 to clarify that parties must seek GAO's prior approval before
submitting additional statements and that GAO reserves the right to
disregard statements that are submitted without prior approval.
Electronic Transmissions
The current admonition in paragraph (b) of 4 CFR 21.4 against the
electronic transmission of documents in bid protests subject to a
protective order is inconsistent with GAO's protective order admission
notice, which permits the electronic transmission of documents unless a
party has objected. To reconcile GAO's Bid Protest Regulations with
current practice, GAO proposes to delete the last sentence of paragraph
(b) of 4 CFR 21.4 to remove the admonition against the electronic
transmission of documents in bid protests subject to a protective
order.
Sanctions
In the protest of Network Security Technologies, Inc., B-290741.2,
November 13, 2002, 2002 CPD ] 193, GAO gave notice that the dismissal
of a protest was a potential sanction for the violation of a GAO
protective order. In the protest of PWC Logistics Services Co. KSC(c),
B-310559, January 11, 2008, 2008 CPD ] 25, GAO employed that sanction
for the first time, dismissing the protest as the direct result of the
protester's counsel's violation of the GAO protective order in the
protest. GAO views its authority to impose dismissal and other
sanctions as inherent to its authority to issue and administer
protective orders. To clearly advise that dismissal of a protest is a
potential sanction for violation of a GAO protective order, GAO
proposes to revise paragraph (d) of 4 CFR 21.4 to reflect that
dismissal is among the sanctions that GAO will consider in response to
violation of a GAO protective order, as is prohibition from
participation in the remainder of a protest as an intervenor, which is
another sanction GAO has used in the
[[Page 15100]]
past to address a protective order violation.
Small Business Administration
Standard industrial classification codes have been replaced by the
North American Industry Classification System standards. For
administrative purposes, GAO proposes to revise paragraph (b) of 4 CFR
21.5 to replace the term ``standard industrial classification'' with
the term ``North American Industry Classification System.''
Statutory Stays
31 U.S.C. 3553(c) and (d) address agencies' requirements to
withhold contract award or suspend contract performance when a protest
is filed at GAO. Although a protest to GAO is the triggering event
under these statutory authorities, the authorities provide no role for
GAO in this process. GAO proposes to revise 4 CFR 21.6, to clarify that
GAO has no role in administering the statutory requirements to withhold
contract award or suspend contract performance.
Notification to Agency
GAO is required under 31 U.S.C. 3554(d) to provide notice to the
parties in a protest. GAO proposes to simplify the list of agency
contacts in paragraph (a) of 4 CFR 21.12 to reflect GAO's current
practice in meeting its statutory obligations.
Reconsideration
Certain grounds for requesting reconsideration of a protest
decision, such as the repetition of arguments previously made, do not
merit reconsideration by GAO. Requests for reconsideration are required
to be filed within 10 days of the issuance of a protest decision. GAO
can see no reason to reconsider arguments so recently considered here,
and will therefore dismiss requests for reconsideration based on such
arguments without development or further consideration. To clarify the
requirements of a request for reconsideration and to emphasize that
repetitive arguments will be summarily dismissed, GAO proposes to
revise paragraph (c) of 4 CFR 21.14, to state that a request for
reconsideration must show that the prior decision contains errors of
fact or law, or must present information not previously considered that
warrants reversal or modification of the prior decision, and to state
that GAO will not consider requests based on the repetition of
arguments previously raised.
Additionally, GAO proposes to delete language in paragraph (c) of 4
CFR 21.14 regarding agencies' obligation to withhold award and suspend
performance in the event of a request for reconsideration because, as
discussed above, GAO has no role in this process. By deleting this
provision, however, GAO does not express any view regarding agencies'
obligations under 31 U.S.C. 3553(c) and (d).
List of Subjects in 4 CFR Part 21
Administrative practice and procedure, Appeals, 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 amended as follows:
PART 21--BID PROTEST REGULATIONS
1. The authority citation for part 21 continues to read as follows:
Authority: 31 U.S.C. 3551-3556.
2. In part 21, remove the words ``a contracting agency'' and ``the
contracting agency'' wherever they appear and add in their place the
words ``an agency'' or ``the agency,'' respectively.
3. Amend Sec. 21.0 by revising paragraphs (a)(2), (b)(2), and (c);
removing paragraph (d); and redesignating paragraph (e) as paragraph
(d), redesignating paragraph (f) as paragraph (e), redesignating
paragraph (g) as paragraph (f) and revising it, and redesignating
paragraph (h) as paragraph (g).
The revisions read as follows:
Sec. 21.0 Definitions.
(a)(1) * * *
(2) In a public-private competition conducted under Office of
Management and Budget Circular A-76 regarding performance of an
activity or function of a Federal agency, or a decision to convert a
function performed by Federal employees to private sector performance
without a competition under OMB Circular A-76, interested party also
means
(A) the official responsible for submitting the Federal agency
tender, and
(B) any one individual, designated as an agent by a majority of the
employees performing that activity or function, who represents the
affected employees.
(b)(1) * * *
(2) If an interested party files a protest in connection with a
public-private competition conducted under OMB Circular A-76 regarding
an activity or function of a Federal agency, the official responsible
for submitting the Federal agency tender, or the agent representing the
Federal employees as described in paragraph (a)(2)(B) of this section,
or both, may also be intervenors.
(c) Federal agency or 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.
* * * * *
(f) A document is filed on a particular day when it is received by
GAO by 5:30 p.m., eastern time, on that day. Protests and other
documents may be filed by hand delivery, mail, commercial carrier,
facsimile transmission (202-512-9749), or e-mail ([email protected]).
Please check GAO's Web site (http://www.gao.gov/legal/bidprotest.html)
for current filing information. Hand delivery and other means of
delivery may not be practicable during certain periods due, for
example, to security concerns or equipment failures. The filing party
bears the risk that the delivery method chosen will not result in
timely receipt at GAO.
* * * * *
4. Amend Sec. 21.1 by revising paragraph (g) to read as follows:
Sec. 21.1 Filing a protest.
* * * * *
(g) Unless precluded by law, GAO will not withhold material
submitted by a protester from any party outside the government after
issuing a decision on the protest, in accordance with GAO's rules at 4
CFR part 81. 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.
* * * * *
5. Amend Sec. 21.3 by revising paragraphs (c), (d), and (j) to
read as follows:
Sec. 21.3 Notice of protest, submission of agency report, and time
for filing of comments on report.
* * * * *
(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
[[Page 15101]]
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 respond to the request for
documents in writing. The agency's response shall, at a minimum,
identify whether the requested documents exist, which of the requested
documents or portions thereof the agency intends to produce, which of
the requested documents or portions thereof the agency intends to
withhold, and the basis for not producing any of the requested
documents or portions thereof. 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, a party may request that another party produce relevant
documents, or portions of documents, that are not in the agency's
possession.
* * * * *
(j) GAO may request or permit the submission of additional
statements by the parties and by other parties participating in the
protest as may be necessary for the fair resolution of the protest. The
agency and other parties must receive GAO's approval before submitting
any additional statements. GAO reserves the right to disregard material
submitted without prior approval.
6. Amend Sec. 21.4 by revising paragraphs (b) and (d) to read as
follows:
Sec. 21.4 Protective orders.
* * * * *
(b) If no protective order has been issued, the agency may withhold
from the parties those portions of its report that would ordinarily be
subject to a protective order. GAO will review in camera all
information not released to the parties.
* * * * *
(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,
restricting the individual's practice before GAO, prohibition from
participation in the remainder of the protest, or dismissal of the
protest.
7. Amend Sec. 21.5 by revising paragraph (b)(1) to read as
follows:
Sec. 21.5 Protest issues not for consideration.
* * * * *
(b) Small Business Administration issues. (1) Small business size
standards and North American Industry Classification System (NAICS)
standards. Challenges of established size standards or the size status
of particular firms, and challenges of the selected NAICS code may be
reviewed solely by the Small Business Administration. 15 U.S.C.
637(b)(6).
* * * * *
8. Revise Sec. 21.6 to read as follows:
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); GAO
does not administer the requirements to stay award or suspend contract
performance under CICA at 31 U.S.C. 3553(c) and (d).
9. Amend Sec. 21.12 by revising paragraph (a) to read as follows:
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, and the 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 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.
* * * * *
10. Amend Sec. 21.14 by revising paragraph (c) to read as follows:
Sec. 21.14 Request for reconsideration.
* * * * *
(c) GAO will summarily dismiss any request for reconsideration that
fails to state a valid basis for reconsideration or is untimely. To
obtain reconsideration, the requesting party must show that our prior
decision contains errors of either fact or law, or must present
information not previously considered that warrants reversal or
modification of our decision; GAO will not consider a request for
reconsideration based on repetition of arguments previously raised.
Gary L. Kepplinger,
General Counsel, United States Government Accountability Office.
[FR Doc. E8-5621 Filed 3-20-08; 8:45 am]
BILLING CODE 1610-02-P