[Federal Register Volume 75, Number 7 (Tuesday, January 12, 2010)]
[Rules and Regulations]
[Pages 1541-1543]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-385]
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POSTAL SERVICE
39 CFR Part 601
Purchasing of Property and Services
AGENCY: Postal ServiceTM.
ACTION: Final rule.
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SUMMARY: The Postal Service is revising its regulations governing the
supplier disagreement resolution (SDR) process to clarify and explain
the purposes of that process, and to remove extraneous and duplicative
language.
DATES: Effective Date: January 12, 2010.
FOR FURTHER INFORMATION CONTACT: Paul D. McGinn, 202-268-4368, or
Edward B. Halstead, 202 268-6221.
SUPPLEMENTARY INFORMATION: The Postal Service is revising the
regulations in 39 CFR 601.107 and 601.108 that govern the supplier
disagreement resolution (SDR) process in order to clarify certain SDR
procedures. These changes are explained in more detail below.
Explanation of Changes
Section 601.107: Initial Disagreement Resolution
Paragraph (a) has been revised to state that the Supplier
Disagreement Resolution Official (SDR Official) is a contracting
officer designated by the Postal Service to perform the functions
established under Sec. 601.108.
Paragraph (b) has been revised to clarify the timelines for filing
initial disagreements concerning solicitations.
Paragraph (c) is revised to inform parties that the alternative
dispute resolution (ADR) process may be used to resolve disagreements
and that if an agreement cannot be reached under ADR, the supplier has
10 days to lodge its disagreement with the SDR Official.
[[Page 1542]]
Section 601.108: SDR Official Disagreement Resolution
Paragraph (a) has been revised to remove language that was
extraneous or duplicative of statements made in other paragraphs.
Paragraph (b) contains editorial changes and further explains the
purposes of the disagreement resolution process.
Paragraph (c) clarifies the acceptable modes for submitting a
disagreement under Sec. 601.107 or contest of decision under Sec.
601.105 and updates the dedicated fax number.
Paragraph (d) clarifies that this paragraph covers both
disagreements under Sec. 601.107 and contests of decisions under Sec.
601.105. Paragraph (d)(3) has been revised for clarity.
Paragraph (e) is supplemented to provide examples of remedies that
the SDR Official is authorized to grant.
Paragraph (g) explains when a challenged award becomes final, a
status that varies depending on how the SDR Official resolves the
disagreement. The grounds upon which appeals may be taken to Federal
court, previously addressed in paragraph (g), are now addressed in a
new paragraph (h).
Paragraph (h) clarifies the grounds upon which the Postal Service's
final contract award, as described in paragraph (g), may be appealed.
Paragraph (h) further clarifies that the party lodging the disagreement
may seek review of the Postal Service's final contract award only after
the mandatory administrative remedies provided under Sec. 601.107 and
Sec. 601.108 have been exhausted.
Paragraph (i) is identical to the old paragraph (h), except that it
now clarifies that the resolution timeframe applies not only to
disagreements under Sec. 601.107, but also to contests of decisions
under Sec. 601.105.
List of Subjects in 39 CFR Part 601
Government procurement, Postal Service.
0
Accordingly, 39 CFR Part 601 is amended as follows:
PART 601--[AMENDED]
0
1. The authority citation for 39 CFR Part 601 continues to read as
follows:
Authority: 39 U.S.C. 401, 404, 410, 411, 2008, 5001-5605.
0
2. Revise Sec. Sec. 601.107 and 601.108 to read as follows:
Sec. 601.107 Initial disagreement resolution.
(a) Definitions.
(1) Days. Calendar days; however, any time period will run until a
day that is not a Saturday, Sunday, or legal holiday.
(2) Disagreements. All disputes, protests, claims, disagreements,
or demands of whatsoever nature arising in connection with the
acquisition of property and services within the scope of Sec. 601.103
of this chapter, except those:
(i) That arise pursuant to a contract under the Contract Disputes
Act under Sec. 601.109;
(ii) That concern debarment, suspension, or ineligibility under
Sec. 601.113; or
(iii) That arise out of the nonrenewal of transportation contracts
containing other provisions for the review of such decisions.
(3) Interested parties. Actual or prospective offerors whose direct
economic interests would be affected by the award of, or failure to
award, the contract.
(4) Lodge. A disagreement is lodged on the date it is received by
the contracting officer or the Supplier Disagreement Resolution
Official, as appropriate.
(5) SDR Official. The Supplier Disagreement Resolution Official, a
contracting officer designated by the Postal Service to perform the
functions established under Sec. 601.108.
(b) Policy. It is the policy of the Postal Service and in the
interest of its suppliers to resolve disagreements by mutual agreement
between the supplier and the responsible contracting officer. All
disagreements must be lodged with the responsible contracting office in
writing via facsimile, e-mail, hand delivery, or U.S. Mail. For
disagreements that concern the award of a contract, the disagreement
shall be lodged within 10 days of the date the supplier received
notification of award or 10 days from the date the supplier received a
debriefing, whichever is later. For disagreements that concern alleged
improprieties in a solicitation, the contracting officer must receive
the disagreement before the time set for the receipt of proposals,
unless the disagreement concerns an alleged impropriety that does not
exist in the initial solicitation but which is subsequently
incorporated into the solicitation, in which event the contracting
officer must receive the disagreement no later than the next closing
time for the receipt of proposals following the incorporation. The
resolution period shall last 10 days from the date when the
disagreement is lodged with the contracting officer. During the
supplier-contracting officer 10-day resolution period, the responsible
contracting officer's management may help to resolve the disagreement.
At the conclusion of the 10-day resolution period, the contracting
officer must communicate, in writing, to the supplier his or her
resolution of the disagreement.
(c) Alternative dispute resolution. Alternative dispute resolution
(ADR) procedures may be used to resolve a disagreement. If the use of
ADR is agreed upon, the 10-day limitation is suspended. If agreement
cannot be reached, the supplier has 10 days to lodge its disagreement
with the SDR Official.
Sec. 601.108 SDR Official disagreement resolution.
(a) General. If a disagreement under Sec. 601.107 is not resolved
within 10 days after it was lodged with the contracting officer, if the
use of ADR fails to resolve it at any time, if the supplier is not
satisfied with the contracting officer's resolution of the
disagreement, or if the decision not to accept or consider proposals
under Sec. 601.105 is contested, the SDR Official is available to
provide final resolution of the matter. The Postal Service desires to
resolve all such matters quickly and inexpensively in keeping with the
regulations in this part.
(b) Scope and applicability. This procedure is established as the
sole and exclusive means to resolve disagreements under Sec. 601.107
and contests of decisions under Sec. 601.105. This procedure is
intended to expeditiously resolve disagreements that are not resolved
at the responsible contracting officer level; to reduce litigation
expenses, inconvenience, and other costs for all parties; to facilitate
successful business relationships with Postal Service suppliers, the
supplier community, and other persons; and to develop further the basis
for the Postal Service's purchasing decisions and the administrative
records concerning those decisions. All disagreements under Sec.
601.107 and contests of decisions under Sec. 601.105 will be lodged
with and resolved, with finality, by the SDR Official under and in
accordance with the sole and exclusive procedure established in this
section.
(c) Lodging. The disagreement under Sec. 601.107 or contest of
decision under Sec. 601.105 must be lodged with the SDR Official in
writing via facsimile, e-mail, hand delivery, or U.S. Mail. The
disagreement under Sec. 601.107 or contest of decision under Sec.
601.105 must state the factual circumstances relating to it and the
remedy sought. A disagreement under Sec. 601.107 must also state the
scope and outcome of the initial disagreement resolution attempt with
[[Page 1543]]
the contracting officer. The address of the SDR Official is: Room 4130
(Attn: SDR Official), United States Postal Service Headquarters, 475
L'Enfant Plaza, SW., Washington, DC 20260-4130. e-mail Address:
[email protected]. Fax Number: (202) 268-0075.
(d) Lodging timeframes. Disagreements under Sec. 601.107 or
contests of decisions under Sec. 601.105 must be lodged with the SDR
Official within the following timeframes:
(1) Disagreements under Sec. 601.107 not resolved with the
contracting officer must be lodged with the SDR Official within 20 days
after they were lodged with the contracting officer (unless ADR had
been used to attempt to resolve them);
(2) Disagreements under Sec. 601.107 for which ADR had been agreed
to be used must be lodged with the SDR Official within 10 days after
the supplier knew or was informed by the contracting officer or
otherwise that the matter was not resolved;
(3) Where a supplier is dissatisfied with the contracting officer's
resolution of a disagreement under Sec. 601.107, the supplier must
lodge the disagreement with the SDR Official within 10 days after the
supplier first receives notification of the contracting officer's
resolution; and
(4) Contests of decisions under Sec. 601.105 to decline to accept
or consider proposals must be lodged with the SDR Official within 10
days of the supplier's receipt of the written notice explaining the
decision.
(5) The SDR Official may grant an extension of time to lodge a
disagreement under Sec. 601.107 or contest of decision under Sec.
601.105 or to provide supporting information when warranted. Any
request for an extension must set forth the reasons for the request, be
made in writing, and be delivered to the SDR Official on or before the
time to lodge a disagreement lapses.
(e) Disagreement decision process. The SDR Official will promptly
provide a copy of a disagreement to the contracting officer, who will
promptly notify other interested parties. The SDR Official will
consider a disagreement and any response by other interested parties
and appropriate Postal Service officials within a time frame
established by the SDR Official. The SDR Official may also meet
individually or jointly with the person or organization lodging the
disagreement, other interested parties, and/or Postal Service
officials, and may undertake other activities in order to obtain
materials, information, or advice that may help to resolve the
disagreement. The person or organization lodging the disagreement,
other interested parties, or Postal Service officials must promptly
provide all relevant, nonprivileged materials and other information
requested by the SDR Official. If a submission contains trade secrets
or other confidential information, it should be accompanied by a copy
of the submission from which the confidential matter has been redacted.
The SDR Official will determine whether any redactions are appropriate
and will be solely responsible for determining the treatment of any
redacted materials. After obtaining such information, materials, and
advice as may be needed, the SDR Official will promptly issue a written
decision resolving the disagreement and will deliver the decision to
the person or organization lodging the disagreement, other interested
parties, and appropriate Postal Service officials. When resolving a
disagreement raised under Sec. 601.107, the SDR Official may grant
remedies including, but not limited to, the following:
(1) Directing the contracting officer to revise the solicitation or
to issue a new solicitation;
(2) Directing the contracting officer to recompete the requirement;
(3) Directing the contracting officer to reevaluate the award on
the basis of current proposals and the evaluation factors contained in
the solicitation; and
(4) Directing the contracting officer to terminate the contract or
to refrain from exercising options under the contract.
(f) Guidance. The SDR Official will be guided by the regulations
contained in this part and all applicable public laws enacted by
Congress. Non-Postal Service procurement rules or regulations and
revoked Postal Service regulations will not apply or be taken into
account. Failure of any party to provide requested information may be
taken into account by the SDR Official in the decision.
(g) Final resolution by the SDR Official and final contract award
of the Postal Service. A resolution by the SDR Official will be final
and binding. If the SDR Official's final resolution affirms the
original contract award of the contracting officer, the contracting
officer's original contract award becomes the Postal Service's final
contract award, and may be subject to judicial review as described in
paragraph (h) of this section. If the SDR Official's final resolution
directs that the Postal Service terminate the contract award and issue
a new solicitation, recompete the requirement, or reevaluate the
current award, the contracting officer shall implement promptly the SDR
Official's final resolution. However, any contract award made by the
contracting officer after a resolicitation, recompetition, or
reevaluation directed by the SDR Official is not a final contract award
of the Postal Service that may be subject to judicial review unless and
until disagreements concerning that contract award have been lodged and
resolved with finality by the SDR Official.
(h) Judicial review. The Postal Service's final contract award, as
described in paragraph Sec. 601.108(g), may be appealed to a Federal
court with jurisdiction based only upon an alleged violation of the
regulations contained in this part or an applicable public law enacted
by Congress. The party lodging the disagreement may seek review of the
Postal Service's final contract award only after the mandatory
administrative remedies provided under Sec. 601.107 and Sec. 601.108
have been exhausted.
(i) Resolution timeframe. It is intended that this procedure
generally will resolve disagreements under Sec. 601.107 or contests of
decisions under Sec. 601.105 within approximately 30 days after
receipt by the SDR Official. The time may be shortened or lengthened
depending on the complexity of the issues and other relevant
considerations.
Stanley F. Mires,
Chief Counsel, Legislative.
[FR Doc. 2010-385 Filed 1-11-10; 8:45 am]
BILLING CODE 7710-12-P