[Code of Federal Regulations]
[Title 48, Volume 1]
[Revised as of October 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 48CFR33.104]

[Page 688-692]
 
            TITLE 48--FEDERAL ACQUISITION REGULATIONS SYSTEM
 
                CHAPTER 1--FEDERAL ACQUISITION REGULATION
 
PART 33_PROTESTS, DISPUTES, AND APPEALS--Table of Contents
 
                          Subpart 33.1_Protests
 
Sec.  33.104  Protests to GAO.

    Procedures for protests to GAO are found at 4 CFR Part 21 (GAO Bid 
Protest Regulations). In the event guidance concerning GAO procedure in 
this section conflicts with 4 CFR Part 21, 4 CFR Part 21 governs.
    (a) General procedures. (1) A protester is required to furnish a 
copy of its complete protest to the official and location designated in 
the solicitation or, in the absence of such a designation, to the 
contracting officer, so it is received no later than 1 day after the 
protest is filed with the GAO. The GAO may dismiss the protest if the 
protester fails to furnish a complete copy of the protest within 1 day.
    (2) Immediately after receipt of the GAO's written notice that a 
protest has been filed, the agency shall give notice of the protest to 
the contractor if the award has been made, or, if no award has been 
made, to all parties who appear to have a reasonable prospect of 
receiving award if the protest is denied. The agency shall furnish 
copies of the protest submissions to such parties with instructions to 
(i) communicate directly with the GAO, and (ii) provide copies of any 
such communication to the agency and to other participating parties when 
they become known. However, if the protester has identified sensitive 
information and requests a protective order, then the contracting 
officer shall obtain a redacted version from the protester to furnish to 
other interested parties, if one has not already been provided.
    (3)(i) Upon notice that a protest has been filed with the GAO, the 
contracting officer shall immediately begin compiling the information 
necessary for a report to the GAO. The agency shall submit a complete 
report to the GAO within 30 days after the GAO notifies the agency by 
telephone that a protest has been filed, or within 20 days after receipt 
from the GAO of a determination to use the express option, unless the 
GAO--
    (A) Advises the agency that the protest has been dismissed; or
    (B) Authorizes a longer period in response to an agency's request 
for an extension. Any new date is documented in the agency's file.
    (ii) When a protest is filed with the GAO, and an actual or 
prospective offeror so requests, the procuring agency shall, in 
accordance with any applicable protective orders, provide actual or 
prospective offerors reasonable access to the protest file. However, if 
the GAO dismisses the protest before the documents are submitted to the 
GAO, then no protest file need be made available. Information exempt 
from disclosure under 5 U.S.C. 552 may be redacted from the protest 
file. The protest file shall be made available to non-intervening actual 
or prospective offerors within a reasonable time after submittal of an 
agency report to the GAO. The protest file shall include an index and as 
appropriate--
    (A) The protest;
    (B) The offer submitted by the protester;
    (C) The offer being considered for award or being protested;
    (D) All relevant evaluation documents;
    (E) The solicitation, including the specifications or portions 
relevant to the protest;
    (F) The abstract of offers or relevant portions; and
    (G) Any other documents that the agency determines are relevant to 
the protest, including documents specifically requested by the 
protester.

[[Page 689]]

    (iii) At least 5 days prior to the filing of the report, in cases in 
which the protester has filed a request for specific documents, the 
agency shall provide to all parties and the GAO a list of those 
documents, or portions of documents, that the agency has released to the 
protester or intends to produce in its report, and those documents that 
the agency intends to withhold from the protester and the reasons for 
the proposed withholding. Any objection to the scope of the agency's 
proposed disclosure or nondisclosure of the documents must be filed with 
the GAO and the other parties within 2 days after receipt of this list.
    (iv) The agency report to the GAO shall include--
    (A) A copy of the documents described in 33.104(a)(3)(ii);
    (B) The contracting officer's signed statement of relevant facts, 
including a best estimate of the contract value, and a memorandum of 
law. The contracting officer's statement shall set forth findings, 
actions, and recommendations, and any additional evidence or information 
not provided in the protest file that may be necessary to determine the 
merits of the protest; and
    (C) A list of parties being provided the documents.
    (4)(i) At the same time the agency submits its report to the GAO, 
the agency shall furnish copies of its report to the protester and any 
intervenors. A party shall receive all relevant documents, except--
    (A) Those that the agency has decided to withhold from that party 
for any reason, including those covered by a protective order issued by 
the GAO. Documents covered by a protective order shall be released only 
in accordance with the terms of the order. Examples of documents the 
agency may decide to exclude from a copy of the report include documents 
previously furnished to or prepared by a party; classified information; 
and information that would give the party a competitive advantage; and
    (B) Protester's documents which the agency determines, pursuant to 
law or regulation, to withhold from any interested party.
    (ii)(A) If the protester requests additional documents within 2 days 
after the protester knew the existence or relevance of additional 
documents, or should have known, the agency shall provide the requested 
documents to the GAO within 2 days of receipt of the request.
    (B) The additional documents shall also be provided to the protester 
and other interested parties within this 2-day period unless the agency 
has decided to withhold them for any reason (see subdivision (a)(4)(i) 
of this section). This includes any documents covered by a protective 
order issued by the GAO. Documents covered by a protective order shall 
be provided only in accordance with the terms of the order.
    (C) The agency shall notify the GAO of any documents withheld from 
the protester and other interested parties and shall state the reasons 
for withholding them.
    (5) The GAO may issue protective orders which establish terms, 
conditions, and restrictions for the provision of any document to an 
interested party. Protective orders prohibit or restrict the disclosure 
by the party of procurement sensitive information, trade secrets or 
other proprietary or confidential research, development or commercial 
information that is contained in such document. Protective orders do not 
authorize withholding any documents or information from the United 
States Congress or an executive agency.
    (i) Requests for protective orders. Any party seeking issuance of a 
protective order shall file its request with the GAO as soon as 
practicable after the protest is filed, with copies furnished 
simultaneously to all parties.
    (ii) Exclusions and rebuttals. Within 2 days after receipt of a copy 
of the protective order request, any party may file with the GAO a 
request that particular documents be excluded from the coverage of the 
protective order, or that particular parties or individuals be included 
in or excluded from the protective order. Copies of the request shall be 
furnished simultaneously to all parties.
    (iii) Additional documents. If the existence or relevance of 
additional documents first becomes evident after a

[[Page 690]]

protective order has been issued, any party may request that these 
additional documents be covered by the protective order. Any party to 
the protective order also may request that individuals not already 
covered by the protective order be included in the order. Requests shall 
be filed with the GAO, with copies furnished simultaneously to all 
parties.
    (iv) Sanctions and remedies. The GAO may impose appropriate 
sanctions for any violation of the terms of the protective order. 
Improper disclosure of protected information will entitle the aggrieved 
party to all appropriate remedies under law or equity. The GAO may also 
take appropriate action against an agency which fails to provide 
documents designated in a protective order.
    (6) The protester and other interested parties are required to 
furnish a copy of any comments on the agency report directly to the GAO 
within 10 days, or 5 days if express option is used, after receipt of 
the report, with copies provided to the contracting officer and to other 
participating interested parties. If a hearing is held, these comments 
are due within 5 days after the hearing.
    (7) Agencies shall furnish the GAO with the name, title, and 
telephone number of one or more officials (in both field and 
headquarters offices, if desired) whom the GAO may contact who are 
knowledgeable about the subject matter of the protest. Each agency shall 
be responsible for promptly advising the GAO of any change in the 
designated officials.
    (b) Protests before award. (1) When the agency has received notice 
from the GAO of a protest filed directly with the GAO, a contract may 
not be awarded unless authorized, in accordance with agency procedures, 
by the head of the contracting activity, on a nondelegable basis, upon a 
written finding that--
    (i) Urgent and compelling circumstances which significantly affect 
the interest of the United States will not permit awaiting the decision 
of the GAO; and
    (ii) Award is likely to occur within 30 days of the written finding.
    (2) A contract award shall not be authorized until the agency has 
notified the GAO of the finding in subparagraph (b)(1) of this section.
    (3) When a protest against the making of an award is received and 
award will be withheld pending disposition of the protest, the 
contracting officer should inform the offerors whose offers might become 
eligible for award of the protest. If appropriate, those offerors should 
be requested, before expiration of the time for acceptance of their 
offer, to extend the time for acceptance to avoid the need for 
resolicitation. In the event of failure to obtain such extensions of 
offers, consideration should be given to proceeding under subparagraph 
(b)(1) of this section.
    (c) Protests after award. (1) When the agency receives notice of a 
protest from the GAO within 10 days after contract award or within 5 
days after a debriefing date offered to the protester for any debriefing 
that is required by 15.505 or 15.506, whichever is later, the 
contracting officer shall immediately suspend performance or terminate 
the awarded contract, except as provided in paragraphs (c) (2) and (3) 
of this section.
    (2) In accordance with agency procedures, the head of the 
contracting activity may, on a nondelegable basis, authorize contract 
performance, notwithstanding the protest, upon a written finding that--
    (i) Contract performance will be in the best interests of the United 
States; or
    (ii) Urgent and compelling circumstances that significantly affect 
the interests of the United States will not permit waiting for the GAO's 
decision.
    (3) Contract performance shall not be authorized until the agency 
has notified the GAO of the finding in subparagraph (c)(2) of this 
section.
    (4) When it is decided to suspend performance or terminate the 
awarded contract, the contracting officer should attempt to negotiate a 
mutual agreement on a no-cost basis.
    (5) When the agency receives notice of a protest filed with the GAO 
after the dates contained in subparagraph (c)(1), the contracting 
officer need not suspend contract performance or terminate the awarded 
contract unless the contracting officer believes that an

[[Page 691]]

award may be invalidated and a delay in receiving the supplies or 
services is not prejudicial to the Government's interest.
    (d) Findings and notice. If the decision is to proceed with contract 
award, or continue contract performance under paragraphs (b) or (c) of 
this section, the contracting officer shall include the written findings 
or other required documentation in the file. The contracting officer 
also shall give written notice of the decision to the protester and 
other interested parties.
    (e) Hearings. The GAO may hold a hearing at the request of the 
agency, a protester, or other interested party who has responded to the 
notice in paragraph (a)(2) of this section. A recording or transcription 
of the hearing will normally be made, and copies may be obtained from 
the GAO. All parties may file comments on the hearing and the agency 
report within 5 days of the hearing.
    (f) GAO decision time. GAO issues its recommendation on a protest 
within 100 days from the date of filing of the protest with the GAO, or 
within 65 days under the express option. The GAO attempts to issue its 
recommendation on an amended protest that adds a new ground of protest 
within the time limit of the initial protest. If an amended protest 
cannot be resolved within the initial time limit, the GAO may resolve 
the amended protest through an express option.
    (g) Notice to GAO. If the agency has not fully implemented the GAO 
recommendations with respect to a solicitation for a contract or an 
award or a proposed award of a contract within 60 days of receiving the 
GAO recommendations, the head of the contracting activity responsible 
for that contract shall report the failure to the GAO not later than 5 
days after the expiration of the 60-day period. The report shall explain 
the reasons why the GAO's recommendation, exclusive of costs, has not 
been followed by the agency.
    (h) Award of costs. (1) If the GAO determines that a solicitation 
for a contract, a proposed award, or an award of a contract does not 
comply with a statute or regulation, the GAO may recommend that the 
agency pay to an appropriate protester the cost, exclusive of profit, of 
filing and pursuing the protest, including reasonable attorney, 
consultant, and expert witness fees, and bid and proposal preparation 
costs. The agency shall use funds available for the procurement to pay 
the costs awarded.
    (2) The protester shall file its claim for costs with the 
contracting agency within 60 days after receipt of the GAO's 
recommendation that the agency pay the protester its costs. Failure to 
file the claim within that time may result in forfeiture of the 
protester's right to recover its costs.
    (3) The agency shall attempt to reach an agreement on the amount of 
costs to be paid. If the agency and the protester are unable to agree on 
the amount to be paid, the GAO may, upon request of the protester, 
recommend to the agency the amount of costs that the agency should pay.
    (4) Within 60 days after the GAO recommends the amount of costs the 
agency should pay the protester, the agency shall notify the GAO of the 
action taken by the agency in response to the recommendation.
    (5) No agency shall pay a party, other than a small business concern 
within the meaning of section 3(a) of the Small Business Act (see 
19.001, ``Small business concern''), costs under paragraph (h)(2) of 
this section--
    (i) For consultant and expert witness fees that exceed the highest 
rate of compensation for expert witnesses paid by the Government 
pursuant to 5 U.S.C. 3109 and 5 CFR 304.105; or
    (ii) For attorney's fees that exceed $150 per hour, unless the 
agency determines, based on the recommendation of the Comptroller 
General on a case-by-case basis, that an increase in the cost of living 
or a special factor, such as the limited availability of qualified 
attorneys for the proceedings involved, justifies a higher fee. The cap 
placed on attorneys' fees for businesses, other than small businesses, 
constitutes a benchmark as to a ``reasonable'' level for attorney's fees 
for small businesses.
    (6) Before paying a recommended award of costs, agency personnel 
should consult legal counsel. Section 33.104(h) applies to all 
recommended

[[Page 692]]

awards of costs that have not yet been paid.
    (7) Any costs the contractor receives under this section shall not 
be the subject of subsequent proposals, billings, or claims against the 
Government, and those exclusions should be reflected in the cost 
agreement.
    (8) If the Government pays costs, as provided in paragraph (h)(1) of 
this section, where a postaward protest is sustained as the result of an 
awardee's intentional or negligent misstatement, misrepresentation, or 
miscertification, the Government may require the awardee to reimburse 
the Government the amount of such costs. In addition to any other remedy 
available, and pursuant to the requirements of subpart 32.6, the 
Government may collect this debt by offsetting the amount against any 
payment due the awardee under any contract between the awardee and the 
Government.

[57 FR 60585, Dec. 21, 1992, as amended at 60 FR 48227, 48275, Sept. 18, 
1995; 61 FR 41470, Aug. 8, 1996; 61 FR 69289, Dec. 31, 1996; 62 FR 
12718, Mar. 17, 1997; 62 FR 51271, Sept. 30, 1997; 62 FR 64933, Dec. 9, 
1997; 63 FR 1532, Jan. 9, 1998; 63 FR 58603, Oct. 30, 1998]