[Code of Federal Regulations]

[Title 48, Volume 1]

[Revised as of October 1, 2005]

From the U.S. Government Printing Office via GPO Access

[CITE: 48CFR33.104]



[Page 712-716]

 

            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



[[Page 713]]



    (G) Any other documents that the agency determines are relevant to 

the protest, including documents specifically requested by the 

protester.

    (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



[[Page 714]]



shall be furnished simultaneously to all parties.

    (iii) Additional documents. If the existence or relevance of 

additional documents first becomes evident after a 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



[[Page 715]]



(c)(1), the contracting officer need not suspend contract performance or 

terminate the awarded contract unless the contracting officer believes 

that an 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.



[[Page 716]]



    (6) Before paying a recommended award of costs, agency personnel 

should consult legal counsel. Section 33.104(h) applies to all 

recommended 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]